This evening at the finale of the Federalist Society’s 2012 National Lawyers Convention, Justice Antonin Scalia spoke about his new book Reading Law: The Interpretation of Legal Texts, which he co-authored with Bryan A. Garner. While introducing the justice, FedSoc Executive Vice President Leonard Leo, that there was possibly record attendance, with two overflow rooms at full capacity. He praised Scalia’s book as a modern-day Blackstone’s commentary.
Justice Scalia began his talk by complimenting his co-author as the foremost legal philologist in America. He joked, “We’re both ‘snoots’—David Foster Wallace’s term for the usage obsessed.” He noted that not only are dictionaries crucial for interpreting legal texts, but it is also important to actually read the prefaces, to know why the definitions are in a particular order, etc.
The justice explained that his book has two parts. The first offers the principles of textualism and originalism. He said that given the strength of those principles, the burden is on non-originalists to prove the superiority of their views. He had little faith in contemporary law schools: to teach textualism: “You have no idea how crazy most academic writing is.” The two main competitors to textualism are, he explained, purposivism (look to general purposes instead of the plain meaning of the words of the statute) and consequentialism (judges should come up with the best result for the case).
Scalia continued that in the second part of the book, he detailed the canons of legal interpretation. He did so since “those who want to be textualists don’t even know how to do it.” One such principle is: when a special provision conflicts with a general one, the former wins.
During an extensive question-and-answer session, the justice was asked his opinion on stare decisis vs. striking down an unconstitutional law. He explained that he has a three-part test: 1) How wrong was the prior decision, 2) was it generally accepted, and 3) the most important: does the prior decision allow me to act like a judge. He offered the example of Roe vs. Wade. 1) It was a very badly argued decision (as even pro-choice people admit), 2) it was and is controversial, 3) as elaborated upon in Casey vs. Planned Parenthood, the “undue burden” test gives him little guidance in how to apply it. In contrast to Roe, he pointed to the incorporation of the Bill of Rights as a no longer controversial precedent.
The justice also gave advice as how to improve legal education, which he said focuses too much on antiquated common law jurisprudence: “It’s like teaching the skill of the buggy whip.” The great English common law judges were making law; but we Americans now have democracy.