By Terry Baynes
Sept 21 (Reuters) - Supreme Court Justice Antonin Scalia has
fired another salvo in his unusual public feud with Judge
Richard Posner over the meaning of "legislative history."
The dustup began in August, when Posner, a prominent appeals
court judge and influential legal thinker, critiqued a book
co-authored by Scalia, "Reading Law: The Interpretation of Legal
Texts." The book lays out Scalia's approach to judicial decision
making, which the justice says is based on a strict focus on the
text of a law and a repudiation of "legislative history."
In his critical book review in The New Republic, Posner had
argued that Scalia was being hypocritical. He cited a 2008 gun
rights decision in which, Posner said, Scalia in fact relied on
legislative history when he assessed the original meaning of the
Second Amendment. On Monday, in an interview with Reuters'
Editor-in-Chief Stephen Adler, Scalia rejected that critique,
calling Posner's allegation a "lie." Posner then provided
Reuters with a two-page response to Scalia's charge, defending
On Friday, Scalia retorted with a two-paragraph written
statement, and that may be the last word on this matter: Posner,
shown a copy of Scalia's latest statement, declined to make
What follows is Scalia's statement. Below that are links to
an article about Scalia's Monday interview with Reuters and to
I stand by my statement.
Judge Posner did not simply write, as his justification
would lead one to believe, that I used legislative history. He
wrote that although I am a "pertinacious critic" of legislative
history, I use it whenever I try to determine the meaning of
18th-century texts. To assess whether that charge of
inconsistency is true, it is what I mean by legislative history,
not what Judge Posner means, that must be consulted. And I
always use it to mean what lawyers understand by the term: not
(what Judge Posner thinks it means) "the background and events
leading to the enactment of a statute," but the hearings,
debates, and committee reports in the body that adopted the text
at issue, pertaining to the meaning of that text.
As for Judge Posner's concluding assertion that at least in
one case (District of Columbia v. Heller) I did use legislative
history in the sense I abhor: the reader need only consult the
cited pages to determine that even this is false.
Fanning furor, Justice Scalia says appeals court judge lied
Text of Judge Posner's respose to Justice Scalia
District of Columbia v. Heller decision
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