U.S. Senator Roman Hruska, despite his patrician-sounding name, is most famous for his praise of the common man. Hruska, a Nebraska Republican, made the following remark on behalf of Judge Harrold Carswell’s 1970 nomination to the Supreme Court:
Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?
Like Judge Carswell before him, Judge Richard Posner is one of the very few Americans honored with a lifetime appointment to the federal courts of appeal. And like Judge Carswell, Judge Posner is one of the even smaller minority ever considered for (though never appointed to) the Supreme Court.
Judge Richard Posner has recently dismissed the study of the Constitution of the United States. He said:
I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.
That was an extraordinary and indeed shocking comment from a federal judge, but sadly his later apology or clarification is insufficient. There Judge Posner expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:
What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise.” This vagueness justifies judges in making a “living Constitution.
But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully. And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context.
Richard A. Posner is the greatest law professor ever to have become a judge in the United States. And he has proven to be the most influential appellate jurist below the Supreme Court who was ever a law professor. Indeed, by the most telling measure—citations by other courts—he holds more sway over his colleagues than any other jurist on the federal courts of appeals. Thus, it would seem that no one is better equipped to write about the relation between the academy and the judiciary. Sadly, however, in Divergent Paths: The Academy and the Judiciary he has produced a disappointing…
I was saddened to read Judge Richard Posner’s vitriolic criticism of Antonin Scalia written in the New York Times with Eric Segall. Judge Posner’s scholarship was the most important contribution to law in the latter half of the 20th century. He reformed many areas of law through the application of economics and did so with clarity, wit, and panache. As Blackstone was the leading legal scholar of this time, so was Judge Posner during my first 25 years as a lawyer.
But being a scholar carries some obligations. And one of them in my view is the obligation of charity—to put the views you oppose in the best possible light before critiquing them. Or if that is not possible within the short space of an op-ed, at least not caricaturing them. I would think that also the obligation of one federal judge to another in the popular press.
And it is obvious from his vast body of work that Justice Scalia does not believe in deferring to the majority, when the Constitution actually prohibits what the majority wants to do. He emphatically does not, as the Judge Posner and Professor Segall claim, embrace “the model of the British Constitution” where the legislature once was the final word.
Justice Scalia rigorously enforces the First and Second Amendments in the Constitution and many other provisions as well, including many that defend the rights of unpopular minorities, like those accused of crimes, because they are in the Constitution.
Doctrines of statutory interpretation rarely raise anyone’s blood pressure. The next time that the canons of construction appear on placards outside the United States Supreme Court building may be the first. Interpretation of legal texts is supposed to be a sober, reflective, and morally-neutral enterprise. So it was striking to observe the controversy around Judge Posner’s critical review of Justice Antonin Scalia’s and Bryan Garner’s book, Reading Law. Posner indulged in uncharitable jabs and even some ad hominem attacks. Scalia and Garner responded with pointed words. As others joined the fracas on law blogs and other media, exclamation marks and…
In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper. Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:
How is Originalism Self-sustaining? Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.
One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes (link no longer available), an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline. One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture. That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture.
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them. Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.