The irrepressible irascibility of Judge Richard Posner is legendary. He delivers epic benchslaps. He once likened administrative law judges to poultry factory workers. He dinged his fellow Seventh Circuit judges for using too much legal jargon. He would be happy to burn all copies of the Bluebook. (Who wouldn’t, really?) He’s pretty much as unapologetic as they come, typically. It turns out, however, that even Posner has his limits and, at least this once, walked back one of his more over-the-top comments.
It all started at the end of this year’s Supreme Court term when Posner wrote a piece for Slate that had not one, but two, classic Posner provocations. First, he took on those who would lionize the late Justice Scalia by arguing that there hasn’t really been a great justice for the last 60 years anyway.
I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.
Lots of people have taken issue with Scalia’s legacy for lots of reasons, but Posner might be the first who wrapped his concerns about Scalia in an envelope of “well, all the Justices suck anyway these days, right?”
If you pay attention to Posner’s more hilarious and outrageous public proclamations, it probably won’t surprise you to know that Posner didn’t stop there. No, he went on to argue that studying the Constitution—particularly the history of it—is actually pretty useless.
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.
Predictably, this caused a bit of consternation and Posner ended up writing a follow-up post the following week in which he had to say that yes, yes you totally should still read and study the Constitution. He stuck to his guns, however, in noting that the vagueness of the Constitution and the fact that it was written 200+ years ago does limit its effectiveness for the modern jurist.
The framers of the Constitution were very intelligent and experienced, but they could no more foresee conditions in the 21st century than we can foresee conditions in the 23rd century. So the choice for the modern judge is: dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems, or decide many constitutional cases by broad interpretation of the Constitution’s vague provisions[.]
Oh–in case you were wondering? He didn’t walk back the bit about Scalia at all, or the part about SCOTUS justices not being all that great any longer, because of course he didn’t. He wouldn’t really be Posner if he apologized for two whole things at once.