The latest book by Supreme Court Justice Antonin Scalia and legal writing guru Bryan Garner takes a skeptical look at judicial decisionmaking, criticizing judges who stray from the text in interpreting statutes and constitutional provisions.
Since the beginning of the Warren Court in the middle of the last century, they state, there has been a "breakdown" in the principles of judicial interpretation that has eroded public confidence in the rule of law. The criticism comes in the new book Reading Law: The Interpretation of Legal Texts. The book is scheduled for publication next week, but we've gotten a sneak peek. For a more detailed story on the book, go to The National Law Journal website.
The book is full of Scalia-esque critiques of Supreme Court decisions including Roe v. Wade and Lawrence v. Texas, though a disclaimer states that "nothing in this book prejudges cases that might come before the United States Supreme Court."
Among other cases, the book takes on Wickard v. Fillburn, the 1942 Commerce Clause case that has been cited in the pending health care cases as precedent for the individual mandate. That decision, the book states, "expanded the Commerce Clause beyond all reason."
In an interview Thursday, Garner said that he and his co-author had a "wonderful working relationship" in writing the 567-page book published by Thomson Reuters. The book reveals that the two have ideological differences; Garner states he supports abortion rights and same-sex marriage. But that did not interfere with the collaboration, Garner said. The cover of the book features Scalia's hand holding a legal text.
The new book is the second joint effort between Scalia and Garner. The first was the 2008 book Making Your Case: The Art of Persuading Judges, a guide to lawyers on how to -- and how not to -- win the support of judges in litigation.