Oh, it’s on now.
Justice Antonin G. Scalia’s snarky rebuff of the criticism of 7th Circuit Judge Richard Posner hasn’t stopped the latter jurist from taking on – and taking apart – Scalia’s meme to textualism.
In a review of the book “Reading Law: The Interpretation of Legal Texts” Scalia authored with Bryan Garner, Posner took issue with the author’s contention that text and historical analysis should be the basis of judges’ interpretations.
“Judges are not competent historians,” Posner said in his New Republic piece, the ABA Journal reports. “Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”