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Saturday, December 05, 2015

How Judge Posner went soft

I posted below how Judge Richard Posner admits to letting politics override the text of the US Constitution. Some claim that he is our greatest legal scholar:
A study published by Fred Shapiro in the University of Chicago's The Journal of Legal Studies found Posner is the most-cited legal scholar of all time by a considerable margin, as Posner's work has generated 7,981 cites compared to the runner-up Ronald Dworkin's 4,488 cites.[1]
Now Posner has written a rant against Justice Antonin Scalia in the NY Times:
In a recent speech to law students at Georgetown, he argued that there is no principled basis [in the text of the Constitution] for distinguishing ... minorities ...

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, ...
Here is how Posner explains his own constitutional interpretation theory:
Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.
Here is Posner's biggest gripe with Scalia:
Obergefell seems to obsess him. In a speech at Rhodes College in Memphis, he said that the decision represents the “furthest imaginable extension of the Supreme Court doing whatever it wants,” ... The decision, he said, “had nothing to do with the law.”
But Posner's opinion is quite similar to what Posner published on the subject in 1997.

It really bugs Posner that Scalia rejects judicial supremacy:
He cited Abraham Lincoln’s remark concerning the infamous Dred Scott ruling that decisions by the Supreme Court are formally binding only on the parties to the case. That’s technically true, but few Americans will agree with Justice Scalia that Obergefell, which conferred rights on millions of Americans, is comparable to Dred Scott, which denied rights to millions by ruling that slaves were not citizens and could not sue in federal courts.

And can Justice Scalia want his own decisions to have diminished and perhaps negligible force until separate lawsuits are brought in each state to enforce them? That implies that state and local officials are free to ignore his gun-friendly decision in District of Columbia v. Heller (holding that the Second Amendment protects an individual’s right to own a gun). Perhaps a few state and local officials will take Justice Scalia up on that offer.
Actually, the local officials have done exactly that. As you can read in the Wikipedia article on Gun laws in the District of Columbia, the DC officials have repeatedly and stubbornly refused to comply with the Supreme Court decision against them, and repeated lawsuits have had to be brought to try to bring them into compliance.

Posner used to be considered a conservative, and evolution professor Jerry Coyne has a theory about how he turned liberal, as an interview revealed:
Tell us something about yourself that is largely unknown and perhaps surprising.

[Posner] Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. ... I spend probably at least half the time at home working. ... One reason is that the cat wants us at home.
Posner has a lifetime appointment, according to the text of the Constitution. He can continue to decide appeals cases, even after switching from dogs to cats.

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