Richard A. Posner’s The Federal Judiciary—Part 5

by Ed Whelan

See Parts 1, 2, 3, and 4

It wouldn’t be fair to suggest that Richard Posner’s new book contains little more than Scalia-bashing, as Posner dedicates lots of time to bashing other justices—and on matters apart from their praise of Scalia. (I’m joking a bit, of course. As I noted before, Posner’s stew might have some tasty morsels here or there, but few readers will have the appetite to search for them.)

According to Posner (p. 67), “the current set of justices is deficient in educational and career and even geographical diversity, deficient in understanding science and technology, virtually bereft of trial experience, not good team players, underworked, and in some respects … ethically challenged.” Unlike the ever-charming Posner, “[s]ome of them are downright disagreeable.”

“None of the current Justices,” Posner continues (p. 67), “measures up to any of” the “notable Justices” of the 20thcentury—Holmes, Jackson, Hughes, Brandeis, Taft, Stone and Cardozo—and none of them, “with the possible exceptions of Justices Ginsburg and Breyer,” equals even “such lesser though still distinguished Supreme Court Justices of that era as” Frankfurter, Warren, Brennan, Harlan, White, and—twist the knife—William O. Douglas (“at his intermittent best”). “Ginsburg and Breyer … alone have claims to excellence, in my opinion, and Ginsburg may be fading” (p. 401). (By the way, Posner was critical of Breyer in a previous book, but as I observed in part IV of my review of that book, his criticisms of Breyer’s judging would seem to apply equally to his own.)

Posner wildly alleges (p. 81) that “the four Justices who dissented in the same-sex marriage case (Obergefell) were in effect trying to enforce Catholic marriage law.” That’s an insipid account of what recognizing that the Constitution doesn’t speak to the question, one way or the other, means. Or was Posner himself “in effect trying to enforce Catholic marriage law” back when he declined to embrace the position that the Constitution requires that marriage be redefined to include same-sex couples?

Posner finds “disappointing” the “quality of the Justices appointed by Presidents George W. Bush and Barack Obama” (p. 164): Roberts, Alito, Sotomayor, and Kagan.

Posner spends some three pages (pp. 169-172) puzzling over, and slamming, the Chief Justice’s observation in his Obergefell dissent that the majority “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” Posner imagines that he’s rebutting the Chief when he states that “homosexual sex was rife” in the ancient Han dynasty and that the Spaniards who conquered Mexico “were shocked by the prevalence of sodomy among the Aztecs.” What completely escapes Posner is that his points support the Chief’s broader observation that the “universal definition of marriage as the union of a man and a woman” arose for reasons having nothing to do with a “decision to exclude gays and lesbians.”

Posner actually devotes a long paragraph (pp. 172-173) to refuting the Chief Justice’s joke about law-review articles on “the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria or something.” It doesn’t cross his mind that the Chief might deliberately have picked something nonsensical.

Posner alleges (p. 181) that among lawyers “there is considerable … questioning sotto voce” of the competence of the justices, “focusing primarily on Kennedy, Sotomayor, and Thomas, and secondarily on Roberts, Alito, and Kagan.”

Posner provides a long list of persons who “were better qualified to be Supreme Court Justices than those appointed to the Court instead” (pp. 184-185). On the list: Goodwin Liu, who was 38 and 39, with no judicial experience or other high-level legal experience, when President Obama nominated Sotomayor and Kagan in 2009 and 2010. Also on Posner’s list are five district judges from the Northern District of Illinois. It’s difficult not to believe that Posner is flattering them in order to disparage the justices.

Posner’s criticism of Justice Ginsburg for her public outspokenness on various matters (pp. 185-187) might be easier to take seriously if Posner himself did not routinely out-Ginsburg Ginsburg.

Mopey Dick seems to have a severe case of SCOTUS envy.

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