Judicial interpretation is art, not science. Judicial interpretation depends entirely on the individual judgment of the judge. So, it is quite remarkable when a sitting Justice of the Supreme Court calls a justice on the Seventh Circuit Court of Appeals a "liar." Judge Antonin Scalia recently penned a book with another author regarding judicial interpretation. Judge Richard Posner, who sits on the Seventh Circuit and is also known as a jurist who writes scholarly opinions, wrote a review of the book in which he said Judge Scalia was engaging in legislative history regarding the Second Amendment.
Judge Posner wrote the review for New Republic. Judge Posner’s essay criticized Justice Scalia’s use of the term "textual originalism," saying it was just another method for a judge to arrive at pre-determined rulings. Judge Posner argued in his essay that judges are not good historians and that history itself is very imprecise.
Justice Scalia replied that Posner was wrong. If Judge Posner had written his review for a legal audience, they would know it not be true. This all started with Justice Scalia’s use of colonial history in a Second Amendment case. Justice Scalia said legislative history refers only to discussions of a legislative body during the enactment of a statute. He feels that Judge Posner should know this. Sure, usually, legislative history does indeed refer to actual deliberations during enactment of a law. Justice Scalia has a valid point. But, surely Judge Posner does, as well. See ABA Bar Journal report.
In any event, it is most unfortunate when judges of the caliber of these two scholarly judges engage in name-calling. I suppose it is a sign of these polarized times. When asked for comment, Judge Posner said, "Responding to to a Supreme Court justice who calls one a liar requires special care in expression." I am sure…..