January 03, 2016
Judging the Justices

From Harvard Magazine, here’s United States Court of Appeals Judge Richard Posner. A Reagan appointee, he was cited by The Journal of Legal Studies as the most cited legal scholar of the 20th century:

About the Supreme Court, he said, “You know they still have a spittoon sitting beside each chair on the bench? What kind of crap is that? Right?” And: “Now who would say, for example, that the nine Supreme Court justices were the nine best lawyers in the country. That’d be preposterous. Now, what if the proposition was, well, they’re among the hundred best lawyers in the country. That would be ridiculous. Among the thousand best lawyers in the country out of 1 million lawyers? No! I think today’s Supreme Court is extremely mediocre.”

It’s startling to hear a sitting federal judge insult the justices on the record, but Posner’s view is that he gives the court and its precedents the respect they are due. Posner’s favorite Supreme Court ruling to attack in the past decade has been District of Columbia v. Heller, the 2008 case in which, by 5-4, the conservative majority ruled that the Constitution’s Second Amendment protects an individual’s right to possess a handgun for self-defense.

To Posner, the decision and, in particular, the majority opinion by Justice Antonin Scalia, is “an example of motivated thinking” — thinking shaped by how he and the other justices in the majority wanted the case to come out. They used their own version of history as a basis for their interpretation of the amendment, he believes, even though, by his count, 14 of the 18 historians who signed friend-of-the-court briefs disputed that view. The justices did “what is derisively called ‘law office history,’” Posner wrote about Scalia’s historical account: “The derision is deserved.”


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Posted by Jerome Doolittle at January 03, 2016 04:30 PM
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