Richard Posner takes Justice Scalia’s so-called “textual originalism” apart pretty neatly:
Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book….
Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.” And still elsewhere, tacking back again, they refer approvingly to an opinion by Justice Kennedy (Leegin Creative Leather Products, Inc. v. PSKS, Inc.), which states that “the Sherman Act’s use of ‘restraint of trade’ invokes the common law itself … not merely the static content that the common law had assigned to the term in 1890.” In other words, “restraint of trade” had a specific meaning (and it did: it meant “restraints on alienation”) in 1890 that judges are free to alter in conformity with modern economics—a form of “dynamic” interpretation that should be anathema to Scalia and Garner. A few pages later they say that “federal courts do not possess the lawmaking power of common-law courts,” ignoring not only the antitrust and ambulance cases but also the fact that most of the concepts deployed in federal criminal law—such as mens rea (intent), conspiracy, attempt, self-defense, and necessity—are common law concepts left undefined in criminal statutes.
Elsewhere Posner says that this supposed “originalism” is actually a wide-ranging set of ad hoc principles designed to “generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.” I think that’s about right. Scalia’s originalism isn’t a genuinely principled stand, like Justice Thomas’s idiosyncratic but perfectly reasonable belief that the history of the Fourteenth Amendment demands that individual rights should be secured through the Privileges and Immunities Clause rather than the Due Process Clause. Nor does Scalia’s underlying conservatism come, like Posner’s, out of a rigorous intellectual analysis of the economic effects of legal rulings. Instead, Scalia, like most judges, makes a lot of decisions based on gut feeling — what he likes, what he doesn’t like, what delights him, and (often, I think) what disgusts him.
But whereas many judges who reach the Supreme Court bench have the humility to recognize that they’re ruling, at least in part, based on their own sense of morality, Scalia likes to insist that he, alone, is the champion of reason on the Court, dragging the others against their will through a ruthlessly logical application of (unquestionable) historic textual meaning. His opinions are certainly ruthless — but Posner shows, quite effectively, that we shouldn’t be bullied by Scalia’s claim to a monopoly on logic.