The book has sparked a heated debate in legal circles after Posner accused the authors of making flawed arguments based on sloppy research. Posner said numerous cases that the authors held up as models of text-based decisions were influenced by other factors, including judges’ personal views.
Scalia fanned that debate on Monday, saying Posner was only able to make such an assertion because he was writing in a non-legal publication, The New Republic. “You can get away with it in The New Republic, I suppose, but not to a legal audience.”
Posner declined to comment on Monday night.
As an example of originalism, Scalia said the death penalty was not covered by the U.S. Constitution’s prohibition against cruel and unusual punishment. At the time that clause was adopted, he said, the death penalty was a standard punishment for a felony. If people want to ban it, they must amend the Constitution or vote to abolish it at the state level, he said.