The Story Of Why One Of America's Most Renowned Judges Is Feuding With Antonin Scalia

Antonin Scalia and Richard PosnerAP and Reuters/John GressAntonin Scalia, left, and Richard Posner.

A federal appeals judge harshly criticised U.S. Supreme Court Justice Antonin Scalia during a recent interview with lawyer and author Joel Cohen, published by the American Bar Association.

Richard Posner, a renowned judge on the U.S. Court of Appeals for the Seventh Circuit in Chicago, spoke about his “frayed” friendship with Scalia and an ongoing feud between them.

On the topic of how he reacts to criticism from other judges, Posner said he didn’t let it bother him when Scalia called him a liar for criticising his 2012 book “Reading Law: The Interpretation of Legal Texts.”

“He’s excitable and prone to anger,” Posner said of Scalia’s reaction to his book review, which was published in New Republic under the title “The Incoherence of Antonin Scalia.” Posner told Cohen the magazine’s editors picked the “adversarial” title without his knowledge, although he accepted responsibility for it.

Posner had this to say in defence of his book review:

He [Scalia] writes a book about judicial interpretation. His book has errors. I connect that in part to the fact that in the front of the book there are acknowledgments of assistance from more than 90 people, including a number of law students. My guess is that much of the book was written by research assistants and was not adequately checked. I’m not saying the authors are bad people — that they’re greedy or that they’re lying. I’m saying that it’s an inaccurate book.

Cohen asked if he was concerned his writings could influence Scalia’s views when reviewing Posner’s legal decisions in court. Posner said he doubted that, since Scalia just affirmed a decision a few weeks ago that Posner had written.

“I imagine he has a bad opinion of me, but I wouldn’t expect that to affect his decisions,” Posner said. “The stakes are too high. I would be very surprised if he’d allow a personal dislike for a judge to influence his views.”

In another article published in Slate, Posner wrote that “Justice Scalia is famously outspoken.” Posner elaborated on that comment in his interview with Cohen. “I think from a public relations standpoint it would be better for the Supreme Court justices to take a lower profile — talk less on the bench and participate less in mock trials and other celebrity-type activities,” he said.

Posner and Scalia’s feud is largely based on some conflicting core beliefs about judging, according to FedSoc Blog. Posner emphasises the importance of making pragmatic legal opinions that apply to the real world and criticises Scalia for following legal text too closely while neglecting practical consequences.

Scalia is a proponent of the originalism method for judging cases, based on the view that the Constitution should be interpreted according to its original meaning at the time of enactment. “I … disagree with Justice Scalia’s philosophy of originalism,” Posner said in the interview.

Posner’s relationship with Scalia has suffered as a result of their feuding comments. “We’re actually old friends, although the friendship has been frayed somewhat,” Posner said, “at least on his side.”

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