Posner on history and judging

[Sanford Levinson]

Richard Posner has an interesting piece in the current University of
Chicago Law Review, "Past-Dependency, Pragmatism, and Critique of History
in Adjudication and Legal Scholarship," 67 U.C.L.Rev. 573.  It has a lot
that is relevant to our discussion of lawyering, judging, and the use of
history.  I note one paragraph:

"There is no problem with judges using history . . . when there is a
consensus among professional historians. But when there is not, the judges
must find a method other than history of resolving whatever legal dispute
the history has been brought to bear upon.  Legal professionals are not
competent to umpire historical disputes.  Because they are not, inevitably
they pick the side of the dispute that coincides with their preferences
based on different grounds altogether." (p. 595)

He refers in the following paragraph to "law office history," with a
footnote stating,  "For examples of highly debatale historical excursus by
originalist judges, see Plant v. Spendthrift Barn, Inc., 514 U.S. 211,
219-25 (1995); Michael H. v. Gerald D., 491 U.S. 110, 127 n. 6
(1989)(Scalia)(plurality; United States v. Lopez, 514 U.S. 549, 584
(1995)(Thomas concurring)."

He then concludes the next paragraph:  "...the adoption of a historicist
rhetoric is a sure sign that the judge is not disclosing the true springs
of decision."  Query, is this "civil" insofar as it suggests that Scalia
and Thomas (or, for that matter, as I suggested a couple days ago, Justice
Souter when claiming that Madison's Remonstrance is the explanation for his
quite systematic hostility to state aid to religious institutions) are
either knaves (i.e., covering up "the true springs" of their decisions) or
fools (i.e., self-deluded into believing they are competent to resolve the
historical disputes)?

I presume that Posner has made himself ever less nominatable to the Supreme
court by the candidate for the presidency who professes his great
admiration for Justices Scalia and Thomas as exemplars of constitutional
methodology!

Sandy