Thursday, August 30, 2012
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Are you implying that Posner's review might have something to do with Scalia slighting him as a "mere" appellate judge? Because the title of your last piece was about Scalia the "diva" and this would be classic "diva" behavior as well, if that were the case.
Posted by: AndyK | Aug 30, 2012 11:39:39 AM
Andy, thanks for the comment. My sense is that if one person acts like an imperious diva toward another, the response of revealing the diva to be, um, an emperor w/o clothes, is not itself divalicious, but just a refusal to be supine in the face of inappropriate behavior. Maybe others disagree...
Posted by: Dan Markel | Aug 30, 2012 1:59:19 PM
Okay, but on the "he started it" theory of divadom, if I'm understanding it correctly, isn't Posner the diva and Scalia the one merely refusing to be supine?
"The Supreme Court today is composed of competent lawyers, and one should probably leave it at that. I don’t think the Court at present has incandescent intellects of the caliber of Holmes, Louis Brandeis, Jackson, and Frankfurter." Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit, Sept. 29, 2011 (New York Review of Books interview by Eric Segall, at 47, 48).
"[F]ederal judges ain't what they used to be. When I got out of law school, there were 67 court of appeals judges . . . . It was a big deal to be a federal court of appeals judge." The current federal bench is too numerous and "not as elite." Justice Antonin Scalia, U.S. Supreme Court, Oct. 5, 2011 (testimony before the Senate Judiciary Committee; video linked here, discussion at 1:22:57-1:23:35; 1:26:05-1:26:31).
Posted by: Michelle Meyer | Aug 30, 2012 2:08:39 PM
Michelle, I don't think Posner's earlier views were directed squarely at Scalia, but to all of them.
When Scalia asked whether Posner was an appellate court judge (as if he didn't know!), that was the divalicious behavior. Not unlike this old chestnut from back in the day:
Posted by: Dan Markel | Aug 30, 2012 2:12:34 PM
Posted by: Michelle Meyer | Aug 30, 2012 2:26:35 PM
Btw, via one of the conspirators, I came across this reply to Posner by a former Scalia clerk, Ed Whelan:
Curious if experts, or at least non-dabblers, think Whelan's on to something.
Posted by: Dan Markel | Sep 1, 2012 5:09:59 PM
Why should "canons of construction," unapproved by any legislature, control over clearly expressed legislative intent, just because the grammar of the operative language is ambiguous? Scalia often rants about colloquies that only one or two legislators attend or participate in -- but this is how legislatures divide responsibilities among members and how a record is made of agreed-upon understandings. While legislative intent may not always be clear, Scalia refuses to accept it even when it is. This is like Justice Kennedy's misguided "congruent and proportionate" standard, in that it refuses to acknowledge the different forms and procedures of legislatures as compared to courts.
Posted by: r.friedman | Sep 4, 2012 6:19:38 PM
For those still following this Greek drama, Dave Lat reached out and did some, um, reporting:
Posted by: anon | Sep 5, 2012 10:55:12 AM