UPDATE (10/28/2016, 11:00 a.m.): Please note a UPDATES during a finish of this post, including corrections and clarifications from Judge Posner.
Judge Richard Posner of a U.S. Court Appeals for a Seventh Circuit isn’t fearful to pronounce his mind, even if his vehement comments competence provoke a prestigious or powerful. The eminent jurist, one of a heading authorised intellectuals of his (or any other) generation, famously mixed it up with a late Justice Antonin Scalia, and had oppressive difference for Chief Justice John Roberts as well.
This competence be cold comfort to Chief Justice Roberts, though Judge Posner binds roughly all of a Chief’s colleagues in low esteem. In a new coming during Chicago’s (wonderful) Seminary Co-op Bookstore, in tie with a launch of William Domnarski’s new biography, Richard Posner (affiliate link), “The Poze” had a following to contend (you can watch a video around C-SPAN; these comments start around 17:00):
I’m indeed essay a book now called Strengths and Weaknesses of a American Legal System. It’s roughly wholly about a sovereign judiciary…. So we have about 10 pages on a strengths and about 320 pages on a weaknesses. [Laughter.]
I’m unequivocally critical. we don’t consider a judges are unequivocally good. we consider a Supreme Court is awful. we consider it’s reached a genuine nadir. Probably usually a integrate of a justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great.
That was proceed harsh, Your Honor — and also maybe a bit of trolling?
Given a festive certification of a 8 sitting justices, we contingency respectfully gainsay from Judge Posner’s criticism of a Court. While it’s loyal that SCOTUS could use a bit some-more experiential diversity, a stream justices collectively have endless knowledge as judges, lawyers, and law professors; in supervision and in private practice; with polite and rapist law; and with hearing and appellate work (admittedly some-more a latter than a former, though remember that Justice Sonia Sotomayor was an partner district profession and hearing decider for many years). If they’re not qualified, it’s tough to suppose who is.
Judge Posner laid a censure for a ostensible debility of a sovereign law during a feet of dual groups, politicians and law clerks:
Of course, a politicians don’t caring about a peculiarity of judges. They’re politicians; they’re meddlesome in politics. They’re not meddlesome in carrying good judges.
In a box of a Supreme Court, what has been a endless bonus to a politicians — it’s loyal of a reduce courts also — is that all a sovereign judges have law clerks. And a Supreme Court justices, and many of a justice of appeals judges, have unequivocally good law clerks, they’re unequivocally smart. So a politicians figure, well, we’re appointing this chairman given he or she is of a sold race, or comes from a special partial of a country, or this or that, or is magnanimous or is conservative. And this chairman is not utterly splendid and doesn’t have many knowledge — never been in a hearing courtroom, for instance — but, there are all these shining law bureau working, so their opinions will be all right, given a law bureau will write them…. That’s a unequivocally vicious scarcity in a system, and there are zillions more.
Posner reiterated his formerly voiced faith that judges should write their possess opinions, instead of withdrawal drafting to their law clerks. He and decider Tom Ginsburg had this lovable sell (19:30):
GINSBURG: If we were to direct that judges write their possess opinions, would that be a good thing?
POSNER: Oh, it’d be great! Half of them would renounce immediately.
During a question-and-answer eventuality during a end, Judge Posner stretched on his critique of SCOTUS (45:50):
[I]f we demeanour during a Supreme Court, for example, of a 9 justices — I’m bringing Scalia behind from a passed to have a customary series of justices — of those nine, one had been in a hearing courtroom. It’s absurd to have an appellate decider who doesn’t have hearing experience.
He urged appellate judges to follow his instance of spasmodic sitting by nomination as hearing judges, that he started doing as a newly allocated decider some-more than 30 years ago and continues to do today.
But their miss of endless hearing knowledge isn’t a usually problem Judge Posner has with a members of SCOTUS. He’s not even tender by their essay (51:40):
The usually dual justices who are competent are Ginsburg and Breyer. Their opinions are readable, and infrequently utterly eloquent. The others, we wouldn’t rubbish my time reading their opinions.
Ouch. And afterwards Posner doubled down, singling out Justice Samuel A. Alito for penning “the many vapid opinion I’ve ever read,” in a box of Whole Woman’s Health v. Hellerstedt (aka a Texas termination case):
Justice Alito’s hyperconservative. He wrote a unequivocally prolonged dissent, 40 pages. The usually thing he pronounced in his gainsay was that a box should have been discharged on a basement of res judicata given some of a plaintiffs aggressive a Texas law had filed a prior matching case, that had been dismissed, and you’re not ostensible to relitigate a matching case. And Breyer, in his infancy opinion, discussed this and forked out there was some overlie in some of a plaintiffs, though there were loads of other plaintiffs who had had zero to do with a progressing case.
And what he should also have said, that he did not say, is that res judicata is this common-law order about perplexing to emanate finality in litigation, that is fine, though it’s not partial of a Constitution or anything, and this is an vicious emanate we’re perplexing to get staid — so because should we bitch with res judicata, generally for 40 pages?
This is standard for a Posner march — a call for pragmatism over formalism in judging. See generally Reflections on Judging (affiliate link).
Consistent with this proceed is a “low opinion” Posner has for fashion (56:00), that he views as especially authorised mysticism, presumably encouraged by worry about Congress (59:00):
The Supreme Court justices feel underneath pressure. For one thing, Congress doesn’t like a Supreme Court. The Supreme Court has a proceed of invalidating congressional legislation. So a justices worry about Congress — maybe they won’t get raises if Congress doesn’t adore them — so they wish to emanate some clarity of infallibility. So a idea that they motionless a box 100 years ago and they’re still following it creates it seem like a Supreme Court’s unequivocally great, they can confirm a box and a hundred years after it’s still a law.
The rather curmudgeonly Judge Posner voiced all sorts of vicious opinions during a panel. This jumped out during me as his Andy Rooney impersonation (24:20):
I hatred these aged terms. ‘Chambers.’ …. We have bureau suites, and they’re called chambers. Why are they called chambers? we consider it’s from a French chambre, and it goes behind to a fourteenth century or something, when there was a large French change in England. So a tenure has stuck. we don’t like that aged stuff, we don’t like looking backwards.
Later on in a event, after vouchsafing lax on some other topic, he quipped, “So we can see I’m a sourpuss, right?”
During a QA, some law students attempted to get recommendation out of Judge Posner. They didn’t succeed.
One Ph.D. tyro marveled during Posner’s outlay over a years — dozens of books, hundreds of articles, thousands of authorised opinions — and asked a inclusive Posner for recommendation on time government and avoiding interference (36:00). After giving a shout-out to his investigate assistants, Posner done a “just do it” criticism that struck me as both correct recommendation and a ideal encapsulation of his life and career.
“I work many of a time…. we got my initial typewriter during age 13, and I’ve been typing furiously ever since.”
Who knows what Posner means by “qualified”? If he means to incorporate a justice’s jurisprudence into a assessment, it’s bizarre that he would name Justice Breyer and Justice Ginsburg as a dual best of a multi-coloured lot. Justice Kagan, for example, would seem closer to Ginsburg than Breyer is….
I also find it bizarre that Posner regards usually Ginsburg and Breyer opinions as “readable” and “sometimes utterly eloquent.” Limiting myself to a magnanimous side of a Court (lest we be suspicion to be indulging my ideological preferences), we consider that Kagan’s opinions transport utterly good compared to Ginsburg’s and Breyer’s.
I determine that Justice Kagan is an glorious writer. Going over a magnanimous wing, many design observers would commend Chief Justice John Roberts as an glorious poetry stylist. When we asked authorised essay guru Bryan Garner to name his favorite writers on a Court (in further to his co-author Justice Scalia), he cited Chief Justice Roberts, Justice Ginsburg, and Justice Kagan.
UPDATE (10/28/2016, 11:00 a.m.): Please see these corrections and clarifications from Judge Posner.
Earlier: Judge Richard Posner: An Interview With His Biographer, William Domnarski
Should Judges Write Their Own Opinions Or Leave Drafting To Their Law Clerks?
Reverse Benchslap Of The Day: Judge Posner Smacks Chief Justice Roberts
David Lat is a owner and handling editor of Above a Law and a author of Supreme Ambitions: A Novel. You can bond with David on Twitter (@DavidLat), LinkedIn, and Facebook, and we can strech him by email during email@example.com.