Judge Richard Posner (Photo by Chensiyuan via Wikimedia Commons.)
UPDATE (10/28/2016, 11:00 a.m.): Please note the UPDATES at the end of this post, including corrections and clarifications from Judge Posner.
Judge Richard Posner of the U.S. Court Appeals for the Seventh Circuit isn’t afraid to speak his mind, even if his candid comments might offend the prestigious or powerful. The renowned jurist, one of the leading legal intellectuals of his (or any other) generation, famously mixed it up with the late Justice Antonin Scalia, and had harsh words for Chief Justice John Roberts as well.
This might be cold comfort to Chief Justice Roberts, but Judge Posner holds almost all of the Chief’s colleagues in low esteem. In a recent appearance at Chicago’s (wonderful) Seminary Co-op Bookstore, in connection with the launch of William Domnarski’s new biography, Richard Posner (affiliate link), “The Poze” had the following to say (you can watch the video via C-SPAN; these comments start around 17:00):
I’m actually writing a book now called Strengths and Weaknesses of the American Legal System. It’s almost entirely about the federal judiciary…. So I have about ten pages on the strengths and about 320 pages on the weaknesses. [Laughter.]
I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir. Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great.
That was way harsh, Your Honor — and also perhaps a bit of trolling?
Given the glittering credentials of the eight sitting justices, I must respectfully dissent from Judge Posner’s assessment of the Court. While it’s true that SCOTUS could use a bit more experiential diversity, the current justices collectively have extensive experience as judges, lawyers, and law professors; in government and in private practice; with civil and criminal law; and with trial and appellate work (admittedly more the latter than the former, but remember that Justice Sonia Sotomayor was an assistant district attorney and trial judge for many years). If they’re not qualified, it’s hard to imagine who is.
Judge Posner laid the blame for the supposed weakness of the federal judiciary at the feet of two groups, politicians and law clerks:
Of course, the politicians don’t care about the quality of judges. They’re politicians; they’re interested in politics. They’re not interested in having good judges.
In the case of the Supreme Court, what has been a tremendous boon to the politicians — it’s true of the lower courts also — is that all the federal judges have law clerks. And the Supreme Court justices, and many of the court of appeals judges, have really good law clerks, they’re really smart. So the politicians figure, well, we’re appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn’t have much experience — never been in a trial courtroom, for example — but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them…. That’s a very serious deficiency in our system, and there are zillions more.
Posner reiterated his previously expressed belief that judges should write their own opinions, instead of leaving drafting to their law clerks. He and moderator Tom Ginsburg had this cute exchange (19:30):
GINSBURG: If we were to demand that judges write their own opinions, would that be a good thing?
POSNER: Oh, it’d be great! Half of them would resign immediately.
During the question-and-answer session at the end, Judge Posner expanded on his critique of SCOTUS (45:50):
[I]f you look at the Supreme Court, for example, of the nine justices — I’m bringing Scalia back from the dead to have the standard number of justices — of those nine, one had been in a trial courtroom. It’s ridiculous to have an appellate judge who doesn’t have trial experience.
He urged appellate judges to follow his example of occasionally sitting by designation as trial judges, which he started doing as a newly appointed judge more than 30 years ago and continues to do today.
But their lack of extensive trial experience isn’t the only problem Judge Posner has with the members of SCOTUS. He’s not even impressed by their writing (51:40):
The only two justices who are qualified are Ginsburg and Breyer. Their opinions are readable, and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions.
Ouch. And then Posner doubled down, singling out Justice Samuel A. Alito for penning “the most tedious opinion I’ve ever read,” in the case of Whole Woman’s Health v. Hellerstedt (aka the Texas abortion case):
Justice Alito’s hyperconservative. He wrote a very long dissent, 40 pages. The only thing he said in his dissent was that the case should have been dismissed on the basis of res judicata because some of the plaintiffs attacking the Texas law had filed a previous similar case, which had been dismissed, and you’re not supposed to relitigate the identical case. And Breyer, in his majority opinion, discussed this and pointed out there was some overlap in some of the plaintiffs, but there were loads of other plaintiffs who had had nothing to do with the earlier case.
And what he should also have said, which he did not say, is that res judicata is this common-law rule about trying to create finality in litigation, which is fine, but it’s not part of the Constitution or anything, and this is an important issue we’re trying to get settled — so why should you fuss with res judicata, especially for 40 pages?
This is par for the Posner course — a call for pragmatism over formalism in judging. See generally Reflections on Judging (affiliate link).
Consistent with this approach is the “low opinion” Posner has for precedent (56:00), which he views as mainly judicial mysticism, possibly motivated by worry about Congress (59:00):
The Supreme Court justices feel under pressure. For one thing, Congress doesn’t like the Supreme Court. The Supreme Court has a way of invalidating congressional legislation. So the justices worry about Congress — maybe they won’t get raises if Congress doesn’t love them — so they want to create some sense of infallibility. So the notion that they decided a case 100 years ago and they’re still following it makes it seem like the Supreme Court’s really great, they can decide a case and a hundred years later it’s still the law.
The somewhat curmudgeonly Judge Posner expressed all sorts of critical opinions during the panel. This jumped out at me as his Andy Rooney impersonation (24:20):
I hate these old terms. ‘Chambers.’ …. We have office suites, and they’re called chambers. Why are they called chambers? I think it’s from the French chambre, and it goes back to the fourteenth century or something, when there was a big French influence in England. So the term has stuck. I don’t like that old stuff, I don’t like looking backwards.
Later on in the event, after letting loose on some other topic, he quipped, “So you can see I’m a sourpuss, right?”
During the Q&A, some law students tried to get advice out of Judge Posner. They didn’t succeed.
One Ph.D. student marveled at Posner’s output over the years — dozens of books, hundreds of articles, thousands of judicial opinions — and asked the prolific Posner for advice on time management and avoiding procrastination (36:00). After giving a shout-out to his research assistants, Posner made a “just do it” comment that struck me as both wise advice and a perfect encapsulation of his life and career.
“I work most of the time…. I got my first typewriter at age 13, and I’ve been typing furiously ever since.”
UPDATE (10/25/2016, 11:50 p.m.): Additional coverage of Judge Posner’s remarks appears in the ABA Journal, the WSJ Law Blog, and Bench Memos. I agree with these aspects of Ed Whelan’s analysis:
Who knows what Posner means by “qualified”? If he means to incorporate a justice’s jurisprudence into the assessment, it’s strange that he would select Justice Breyer and Justice Ginsburg as the two best of a motley lot. Justice Kagan, for example, would seem closer to Ginsburg than Breyer is….
I also find it strange that Posner regards only Ginsburg and Breyer opinions as “readable” and “sometimes quite eloquent.” Limiting myself to the liberal side of the Court (lest I be thought to be indulging my ideological preferences), I think that Kagan’s opinions fare quite well compared to Ginsburg’s and Breyer’s.
I agree that Justice Kagan is an excellent writer. Going beyond the liberal wing, most objective observers would recognize Chief Justice John Roberts as an excellent prose stylist. When I asked legal writing guru Bryan Garner to name his favorite writers on the Court (in addition 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.
Richard Posner [Book TV / C-SPAN2]
Richard Posner [Amazon (affiliate link)]
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 the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
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