“Beach reading for lawyers”
on Jun 4, 2013 at 11:46 am
After delivering a fiery dissent from Monday morning’s decision in Maryland v. King, upholding the constitutionality of a Maryland law that authorizes DNA testing for individuals arrested for “serious offenses,” on Monday afternoon Justice Antonin Scalia doffed his black robe and returned to the courtroom for a very different event: the thirty-eighth Annual Meeting of the Supreme Court Historical Society, where he joined his co-author, Bryan Garner, to discuss their latest book together, Reading Law: The Interpretation of Legal Texts.
“Language matters,” Garner began the lecture, explaining why Scalia and he had spent three-and-a-half years, and over two hundred hours together, writing about canons of interpretation and textual meaning. For an hour, the pair volleyed back and forth discussing a few highlights and sharing several interesting nuggets from their book and the writing process. They disclosed, for example, that one of their only disagreements centered on how to pronounce noscitur a sociis – the “associated-words” canon – a dispute which may not be all that surprising when you consider that both men describe themselves not only as textualists but also as stylists. (On the latter point, Garner quipped that they wanted to create “beach reading for lawyers.”)
Scalia and Garner also told their audience that they had made a one-dollar bet on the ejusdem generis canon – specifically, whether at least half of the eight hundred lawyers at an American Bar Association book talk would know what the canon means . And although Justice Scalia jocularly asserted that “[i]t is malpractice not to know this canon,” he reported that the number of attorneys at the ABA event who indicated that they knew the meaning of the canon was in the single digits.
Scalia and Garner also discussed the fallacies that they exposed in their book, including the “notion that the spirit of a statute should prevail over its letter.” Garner explained that, while perusing used books in Michigan, he discovered an epigram on this fallacy that could sum up much of the book: “There is nothing more dangerous than the common axiom: the spirit of the law is to be considered. To adopt it is to give way to the torrent of opinions.” Justice Scalia weighed in on another fallacy – “the notion that words should be strictly construed” – by proclaiming that he was “not a strict constructionist. They give a bad name to textualists.” You have to be reasonable, he concluded.
Just as the pair reached the subject of legislative history, Garner observed that their “yellow light is on.” “I could spend an hour on legislative history,” Justice Scalia mused with a sigh. Instead, to demonstrate another fallacy – that “committee reports and floor speeches are worthwhile aids in statutory construction” – Scalia and Garner read together from a 1982 exchange between two Senators: William Armstrong of Colorado and Bob Dole of Kansas, then the Chairman of the Senate Finance Committee:
Mr. Armstrong: Mr. President, will the Senator tell me whether or not he wrote the committee report?
Mr. Dole: Did I write the committee report?
Mr. Armstrong: Yes.
Mr. Dole: No; the Senator from Kansas did not write the committee report.
Mr. Armstrong: Did any Senator write the committee report?
Mr. Dole: I have to check.
Mr. Armstrong: Does this Senator know of any Senator who wrote the committee report?
Mr. Dole: I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked…
Mr. Armstrong: Mr. President, has the Senator from Kansas, the Chairman of the Finance Committee, read the committee report in its entirety?
Mr. Dole: I am working on it. It’s not a bestseller, but I am working on it.
Before Scalia and Garner could summarize their remarks at the end of the book about “the Living Constitution,” the proverbial red light was on, and their time had expired.
