It is not often, at least if you live outside of Wisconsin, that you get to see judges duking it out in a public forum. When it does happen, it’s usually pretty mundane by reality television standards: one judge calls out a logical fallacy in another judge’s published opinion or politely suggests that a case could have been decided on narrower grounds. Bystanders take note and study their salad plates until someone changes the subject.

So it is not too hyperbolic to say that the recently reported exchanges between Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit and Justice Antonin Scalia of the Supreme Court are the judicial equivalent of a Monday Night RAW wrestling match complete with pre-ring trash talk. Only Vince McMahon is missing, and that may be because this match is too intense for him.

It began innocently enough when Judge Posner reviewed a book co-authored by Justice Scalia and his perpetual literary sidekick, Bryan Garner, “Reading Law: The Interpretation of Legal Texts.” It’s no secret that Judge Posner and Justice Scalia approach interpretation in different ways, with Judge Posner a well-known proponent of pragmatism and Justice Scalia an equally well-known originalist. Judge Posner’s critique of the book, in “The Incoherence of Antonin Scalia,” published in the August 24, 2012 edition of The New Republic, was, well, critical. He suggested that Justice Scalia violated his own principles of interpretation by relying on legislative history in the Heller v. District of Columbia opinion he authored, in which the Court struck down handgun legislation based on the Second Amendment. He wrote that arguments presented in the book were poorly researched and that anecdotes offered to prove a point often proved the contrary. Ultimately, Judge Posner’s primary critique lay with textual originalism itself, which he argued often leads to illogical results.

Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

There isn’t much here that hasn’t been said about textual originalism before, which is why the response from Justice Scalia is surprising. (Garner’s response, posted on his own blog and as comments on various online fora, is more or less what you’d expect, although he implied that Judge Posner might no longer be his friend.) Justice Scalia started off by calling the review a “hatchet job” in a speech to 500 book tour attendees. In a September 17, 2012 interview with Reuters, he called Judge Posner’s suggestion that Justice Scalia used legislative history in Heller “a lie.” In another interview he referred to The New Republic as a “glossy,” and said that while Judge Posner’s article might fly there, it would not persuade “a legal audience.” A former clerk of Justice Scalia’s called the Posner review “wildly incompetent.”

It’s worth reading all of this within some broader context. A couple of months before the review appeared, Judge Posner also criticized Justice Scalia’s dissent in Arizona v. United States. Asked about it on Fox News Sunday, Justice Scalia responded, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

I’m pretty sure Teresa said something just like this on Real Housewives of New Jersey.

Both of these jurists have written extensively for legal and non-legal audiences, and both of them advocate a particular approach to constitutional interpretation, so the passion is understandable. A recent book by Judge J. Harvie Wilkerson III of the Court of Appeals for the Fourth Circuit, however, takes issue with constitutional theory altogether.

In “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Rights to Self-Governance” (Oxford Univ. Press 2012), Judge Wilkerson discusses the pragmatic and originalist approaches as well as the “living text” approach popularized by Justice William J. Brennan and the political process theory of John Hart Ely. Ultimately, though, Judge Wilkerson argues that no “cosmic” or all-encompassing theory of interpretation is satisfactory, and he suggests that judges simply adopt judicial restraint. He writes, at page 105:

When priests forsake their raiments, shall we listen to them then? When firemen leave behind their trucks and hoses, shall we listen to them then? When plumbers cease to talk of pipes and drains, shall we listen to them then? When judges lay aside the law for policy, shall we listen to them then?

Judge Wilkerson lauds Justices Holmes, Brandeis, Frankfurter and Powell, among others, who, he writes at page 110, “were able to express inclinations about how to decide cases without claiming to have uncovered the Constitution’s Rosetta Stone.” But while he concedes that activist decisions of the Warren Court such as Brown v. Board of Education and Gideon v. Wainwright were correctly decided, he argues at pages 110-111, without providing explanation or rationale, that all of the important civil rights cases have been decided and that there will be no further need for such activism in the future. Issues such as same-sex marriage or gun control are merely “frontiers of social policy” better left unexplored by the courts. It is difficult to square Judge Wilkerson’s unwillingness to “constitutionalize” same-sex marriage with his approval of Brown other than to presume that he finds one social policy worthy and the other not. But this seems to be exactly the sort of judicial policy determination that justifies restraint in the first place.

In arguing against theories altogether, “Cosmic Constitutional Theory” is unlikely to engender a Posner vs. Scalia-style smack-down. Thank goodness. It is worthwhile reading for those interested in a more thoughtful discussion of the issues.