Posner: Supreme Court Is “Awful” and Only A Couple Of Justices Are “Qualified”

Seventh Circuit Judge Richard Posner is triggering a minor dust up over comments made at a bookstore appearance highlighting a new Posner biography written by William Domnarski. Posner blasted the current members of the Court as unqualified and the Court itself as “awful” in terms of the low quality of its work.

Last week, I spoke to the Federal Bar Association in Chicago about the Supreme Court, including critical remarks on how justices are selected and confirmed. Most justices over the history of the Court have been largely mediocre while others have been disasters. Circuit Judge Richard Posner was speaking after me and was in the audience but did not make any comments. It turns out that he had a lot to say on the subject.

Posner said that he is writing a new book entitled Strengths and Weaknesses of the Legal System, which he describes as having about 10 pages on the strengths and about 320 pages on the weaknesses. 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.”

Posner says that justices are selected for characteristics that have no bearing on their ability or intellect:

“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.”

225px-ruth_bader_ginsburg_scotus_photo_portrait225px-stephen_breyer_scotus_photo_portraitPosner is quoted as saying that “probably only a couple of the justices.” Specifically, those two passable members are Ruth Bader Ginsburg and Stephen G. Breyer. They “are qualified. They’re OK, they’re not great.” As to “there others”? Posner reportedly said “I wouldn’t waste my time reading their opinions.”

Posner is certainly correct that most nominees are not selected on the basis for being intellectual leaders. Indeed, Posner himself (as well as others like Judge Guido Calabresi) are examples of brilliant legal minds who were never nominated despite having transformative impacts on the law. Posner is without question one of the most influential living legal figures. His work on economics and law proved transformative for the field. His books in various fields are considered classics. While briefly considered during the Reagan Administration, he was considered too provocative and difficult to be a nominee. Instead, presidents prefer reliable ideological allies for the Court — preferably with a safe and understated record to avoid confirmation attacks.

I would not call this Court “awful” or largely unqualified. However, Poser is doing the country and the Court itself a service in raising troubling history of the Court and the need for scrutiny of how we select nominees. One can respect the Court — as most of us do — but also recognize its flaws. Under our current approach, our ability to secure an Oliver Wendell Holmes or Louis Brandeis is at best accidental.

Of course, as a lower court judge, it would behoove Posner to overcome his view that it is a “waste my time reading their opinions.” Judge Posner may view the cases as pedantic but they are also precedent. Otherwise some of those “unqualified” “awful” folks might be tempted to send back a message of their own in the form of a reversal or two.

121 thoughts on “Posner: Supreme Court Is “Awful” and Only A Couple Of Justices Are “Qualified””

  1. What grammatical errors? Pleasure to read something written in literate fashion from the both of you.

    However the Supreme Authority referred to quite often was not any of the three now four branches of government it was the citizens themselves. A novel idea in those days having never been tried out before – self government. The divine right of kings was replaced by that idea. The problem was the educated people knew it was so foreign to the thinking of most they thought to annoint George W. as King. Education was necessary. Sad part is it’s still necessary. Someone needs to inform the population.

    An aside the notion of left and right came about after the Constitution was ratified and was a French Revolution idea. Kings sat to the right as in ‘divine right of Kings. The left usurped the role of writing dictionaries and the myth of left and right was born even as they tried to bury the supreme authority belonging to the responsible citizens.

    Someone forgot to educate the left apparently.

    1. Michael:

      I don’t know that it’s a matter of educating just the left. We have all benefited from the education provided by these folks, only one of whom our government has in chains for disclosing war crimes:


      The other two have given us all a lesson in how little our government wants us to know of its systemic corruption and the deprivation of our fundamental rights.

      Who will stand on the fourth chair in this row of heroes?

  2. @Steve Groen, October 29, 2016 at 10:26 am

    “On the other hand, when he [Jefferson] wrote of the final arbiter being the People in a representative government, i.e., Congress, I’m not quite so impressed without further explanation from him. It would make the role of the Judiciary illusory because Congress could then whenever and forever ignore Supreme Court precedent and dilute the integrity of the federal Constitution to that of a laxative.”

    Before getting into what Jefferson could have had in mind when he asserted that “the People” are the ultimate bulwark against tyranny in a Constitutional republic , I think it’s advisable to take a look at the current reality of the checks and balances afforded by the Constitution’s separation of powers, specifically with regard to the designation of Congress as the sole branch of the federal government with the authority to declare war, of which the “Father of the Constitution,” James Madison said:

    “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.” [My emphasis]

    The truth of Madison’s assessment of the political effects of war is to me indisputable to the point of being self-evident, and the devolution of the US into the bellicose National Security State that it is today has been augmented throughout our history by war declared and undeclared, against enemies real and imagined, by governmental institutions visible and invisible.

    Whether Jefferson had in mind their elected representatives in Congress as “the People,” or was alluding to the possibility of grassroots mass action, both correctives are effectively robbed of their political potency by secret, invisible government:

    1. Ken Rogers: “Whether Jefferson had in mind their elected representatives in Congress as “the People,” or was alluding to the possibility of grassroots mass action, both correctives are effectively robbed of their political potency by secret, invisible government: . . .”

      It’s hard for me to believe that Jefferson thought either direct democracy or mass action are possessed of the power to determine what any provision of the Constitution. That would make a mockery of the Supreme Court. Wouldn’t it require a referendum if ever there was a dispute as to the meaning of any provision?

      Or, alternatively, wouldn’t that require mass action in the form of armed resistance as the final arbiter? If this were the case, why didn’t Jefferson call out the several militias to arrest C.J. John Marshall, and Justices Bushrod Washington, Samuel Chase. and William Paterson (Justices William Cushing and Alfred Moore dissented) after the Marbury opinion was published?

      I can’t imagine that one of the so-called Founding Fathers who was heavily involved in the drafting of the Constitution and the Bill of Rights would have been opposed to representative government.

      Further, Virginia, where Jefferson was also politically active had representative government. In fact, he was Virginia’s representative in the Second Continental Congress and his drafts of the Virginia constitution arrived too late to be made part of the final draft, according to Wikipedia. It’d be interesting to know just what his drafts looked like in terms of representative government and whether he endorsed the Virginia Constitution which mandated a bicameral legislature.

      Query 13, Notes on the State of Virginia, settles the issue, though. Jefferson’s position was that the “ordinary legislature” can modify a constitution (no matter what any other legislature declares (or impliedly what SCOTUS determines to its domain):

      “[T]hey received in their creation no powers but what were given to every legislature before and since. They could not therefore pass an act transcendant to the powers of other legislatures. If the present assembly pass any act, and declare it shall be irrevocable by subsequent assemblies, the declaration is merely void, and the act repealable, as other acts are. So far, and no farther authorized, they organized the government by the ordinance entitled a Constitution or Form of government. It pretends to no higher authority than the other ordinances of the same session; it does not say, that it shall be perpetual; that it shall be unalterable by other legislatures; that it shall be transcendant above the powers of those, who they knew would have equal power with themselves. Not only the silence of the instrument is a proof they thought it would be alterable, but their own practice also: for this very convention, meeting as a House of Delegates in General Assembly with the new Senate in the autumn of that year, passed acts of assembly in contradiction to their ordinance of government; and every assembly from that time to this has done the same. I am safe therefore in the position, that the constitution itself is alterable by the ordinary legislature . . .”


      Coming full circle then, with the advantage of 240-odd years of hindsight, I can say that Jefferson was wrong to believe the legislature is the final arbiter of all law. The Legislature should not have power over our foundational law, knowing Congress is filled to the rafters with whores who will do and say anything in an attempt to survive the next election cycle. Not so the Supreme Court Justices with their lifetime appointments.

  3. @Steve Groen, October 29, 2016 at 10:26 am

    Steve–I have time right now only to acknowledge and thank you for your thoughtful response to my last post, but will respond in more detail later today.

    We’re certainly in agreement regarding Jefferson’s brilliance and the relevance of his thinking to our current political morass. Tragically, the authoritarian Hamiltonians are all too obviously now firmly in the saddle and Jefferson’s primary political insight that that government governs best which governs least has been made to seem almost quaint by the steroidal growth of the federal leviathan and its liberty-crushing maw.

    More anon.


  4. @ Steve Groen and G. Mason

    Thanks to both of you for calling attention to Jefferson’s warnings regarding the US judicial system, including the Supreme Court.

    What he had to say about the potential for tyranny by the judiciary is something I’d never given enough thought to, and his warnings are a real mind-opener for me.

    What Jefferson had to say about the public’s being the ultimate political authority and bulwark against governmental tyranny has also rekndled my thinking about the difficulties inherent in governing ourselves in a representational democracy, even leaving aside such crucially important issues as corporate personhood, money as speech, and the legion of authoritarian personalities whose relentless seeking and exercising of power over others attracts them to government at all levels.

    I want to return to this question in a later post of whether, and if so, how the American people can effectively resist being ruled by people who think of them as disposable pawns on a world-wide chessboard, particularly when so many Americans have been psychologically manipulated into willingly being so used.

    1. That’s worth pondering and waiting for. I might provide a clue or a path. The clue is ‘fear.’ It affects not only the elderly who are really being rolled and hosed financially but those middle age approaching that status. Those who should know better but also see time slipping away.

      It comes in two parts. One is the very transparent inflation, devaluation and repudiation cycle or put simply loss of buying power. There is a real fear of dying in debt as a pauper because the loss of value of retirement funding might go super toxic if too many begin shouting the Emperor has no clothes. So the elderly are already paying the price as debt is heaped on them and the refusal to include it in COLA. Those near retirement see it as well but still face the ‘fear standard’ and recognize their is no faith and credit much less intrinsic backing to the money only a poor economy with ever higher costs and taxes.

      The second power is a fairy tale faith in the $15 an hour minimum wage and the value of time to make things right before it is there turn. They, the younger generation, become numbed to inevitable consequences and promises of vote for us we can fix this. So Fear Standard with a prop of an unwarranted small ‘f’ faith standard (add the welfare community to that total) but all from a source which has zero or minus zero credit.

      Both find themselves making loans to a government which has no intention of paying them back much less with interest. sufficient.

      That is true psychological manipulation when you see those groups especially the elderly willingly vote for more of the same treatment.

      Decorated with the usual frills of war, fudged figures of employment, twisted logic, etc. No candles on that cake – no frosting, no cake, just a fairy tale. not even a collection of cards to build the structure. Just ‘thin air.’

    2. Ken Rogers:

      I think Jefferson was more worried about increasing federalism than he was about the Judiciary’s role in the government. While John Marshall had argued before SCOTUS, he had never even been a judge before becoming John Adams’ Chief Justice appointee and then wrote a whopper of an opinion in Marbury v. Madision, which really clarified the Judiciary’s role by quiet revolution. But had Marshall been a Republican, Jefferson may not have been quite as alarmed.

      Personally, I have no reservations about the opinion. It makes sense that the Supreme Court is the ultimate arbiter of our foundational law in a representative government rather than direct democracy (which succumbs to propaganda as we’re all experiencing now with regard to our November 8th Armageddon) or a Congress subject to whim. The Supreme Court’s role under the concept of judicial review simply creates all the more need for Congress to justify and document its legislative intent so that the Supreme Court doesn’t have to make that underlying determination in its opinions.

      Jefferson was brilliant, foreseeing profound problems with federalism (primarily, the degradation of what is now the vestigial appendage of the federal Constitution formerly known as the 10th Amendment) as opposed to a more rural assemblage of sovereign states circled together like a wagon train for protection against invasion. I think if he were alive today, he’d be a progressive Lefty. He’s one of the few people I’d choose to chat with were he alive and have the time.

      On the other hand, when he wrote of the final arbiter being the People in a representative government, i.e., Congress, I’m not quite so impressed without further explanation from him. It would make the role of the Judiciary illusory because Congress could then whenever and forever ignore Supreme Court precedent and dilute the integrity of the federal Constitution to that of a laxative.

      1. Steve,
        I am reading an outstanding book called Thomas Jefferson: The Art of Power by John Meacham.

        I am not sure whether the book will further elucidate his perception of the Supreme Court (I am still in the first half of a good-sized book), but it is an excellent read regardless.

        He is indeed prescient and commentary in the book is apropos to today (scarily so in some ways).

        1. “Thomas Jefferson: The Art of Power” He’s a fascinating historical figure. He had many facets (paradoxes, too). He was so intensely invested in government policy and local as opposed to centralized government, and conversely so completely disinterested in his own financial well-being.

          I’ll check out the book. Thanks you for mentioning it.

  5. G.Mason: “‘… there is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court.’ — Thomas Jefferson Letter to William Johnson, Mar. 1823”

    I always like reading Jefferson rebukes of judicial review about Federalists receding to the Judiciary from which they will destroy the country, and I do agree that judicial review shouldn’t be considered settled law since it was the Supreme Court that imposed it. But I suspect it will take a coup d’tat to overrule it, which Jefferson could have ordered but was unwilling to do.

    Jefferson may not have foreseen this, the greatest danger “I apprehend” : “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” – J. Hugo Black, Griffin v. Illinois (1956).

    1. Try a novel approach. Be Different Be Daring. The Final Authority is not the Supreme Court but the citizens. It’s called self government and the directions are contained in something called the Constitution AKA the Hand Book of Responsible Citizenship.

      I find ignoring the rule of law and principles on which that set of rules was founded has the correct method and answer where as the liberal progressive system of ignoring has brought us nothing but failures, problems and the loss of freedoms.

      Hard to do? Too much in the way? Could be but asking questions or making comments such as coup d’etat or revolution? Why

      That’s over with we are now in the counter revolutionary phase but it takes responsible citizens to do that not serfs of a neo feudal aristocratic ruling class using fascist socialism.

      Until then just do what you are told if you are part of the problem. Complaining and pontificating leading to doing NOTHING doesn’t work.

      it ain’t rocket science

      Stop Enabling
      Take Control
      Make Changes

      You aren’t going to do it with talk. Especially using the other sides definitions.

      Until then and without doing that look in the mirror – You will easily see the problem

      However if a the foregoing makes sense congratulations to a fellow citizen. You aren’t alone.

      Look in the mirror. You will see the solution.

  6. If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law … — Letter to Judge Spencer Roane, Nov. 1819

    “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. ….” Thomas Jefferson
    — Letter to Mr. Jarvis, Sept, 1820

    “This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … . The ultimate arbiter is the people …. ” Thomas Jefferson — Letter to Judge William Johnson, June 1823

    The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet. … I will say, that “against this every man should raise his voice,” and, more, should uplift his arm …” Thomas Jefferson — Letter to Thomas Ritchie, Sept. 1820

    I fear, dear Sir, we are now in such another crisis [as when the Alien and Sedition Laws were enacted], with this difference only, that the judiciary branch is alone and single-handed in the present assaults on the Constitution. But its assaults are more sure and deadly, as from an agent seemingly passive and unassuming. ” — Thomas Jefferson Letter to Mr. Nicholas, Dec. 1821

    “… there is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court. ” — Thomas JeffersonLetter to William Johnson, Mar. 1823

    “… One single object … will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation. ” — Thomas Jefferson Letter to Edward Livingston, Mar. 1825

  7. Lame ducks on the Supreme Court. Here is where all of them came from and how they got nominated to pass Congressional mustard: Now sitting on the DC Circuit Court of Appeals; formerly a federal prosecutor or whatnot; formerly to that a Clerk for a federal judge and likely a Clerk for a Supreme Court Justice; law school was Harvard or Yale. Never tried a jury trial as a defense lawyer in a criminal case and never tried a jury trial as a lawyer. Some were circuit judges who tried cases as a judge. Went in dumb, come out dumb too. Hustlin round DC in their alligator shoes.

  8. @Michael Aarethun, October 28, 2016 at 1:41 am
    “Besides it’s a violation of the Constitution.”

    Yes, but some people think that, if it’s taken too seriously, the Constitution can get in the way of getting things done.

    1. Some people think it’s not taken seriously enough. Maybe things are not supposed to be done. Given the results of a 100 year tryout it certainly has scored few successes and a an overwhelming amount of failures.

      So Mr. Social Some Promotion when is the next cycle of economic repression going to kick off. Just before or just after January 20th? I don’t want to miss out on “some’s” next full out assault on the elderly and retired citizens. Do you think ‘some’ have the slightest bit of remorse against kicking the shit out of Grandpa and Grandma? Worse it’s the second attack. Grandpa and Grandma haven’t figured out it’s BOHICA time. What do you expect from social promotions?

      Sorry.. I don’t serve The Party.

  9. @StepStepSteponToads, October 27, 2016 at 11:56 pm
    “Physical violence? No. He’s an abusive public official, and is properly exiled, just like they did in ancient Athens.”
    @StepStepSteponToads, October 27, 2016 at 9:26 am
    “If we lived in a just world, Richard Posner would be arrested, stripped of his citizenship in a brief administrative hearing, put on a plane to Argentina, and told if he ever attempted to re-enter the United States he would be summarily shot on the tarmac.”

    Well, those measures for dealing with a disagreeable person seem pretty physically violent to me, but then maybe I’m not a right-thinking authoritarian. 🙂

  10. @StepStepSteponToads, October 27, 2016 at 7:03 pm

    ” ‘As social psychologist Robert Altemeyer writes:’

    “Robert Altemeyer is known for his ‘research’ ‘demonstrating’ that there is no ‘left-wing authoritarian type’.”

    Is your source of that information the same one that informed you that the members of the Council on Foreign Relations (CFR) are “hobbyists”? Your apparent penchant for uncritically seizing on information that you find supportive of your pre-conceptions and your manifest aversion to cognitive complexity are, by the way, two of the cardinal characteristics of the authoritarian personality. 🙂

    “In the 1990s, Altemeyer (1996) attempted to place the study of left-wing authoritarianism on more solid theoretical and empirical footing by developing a scale to measure LWA, based on fairly similar dimensions as his RWA scale. Recall that the RWA scale was defined by three dimensions: authoritarian submission, authoritarian aggression, and conventionalism. The definition of LWA is also based on three dimensions, but with a twist: authoritarian submission to those dedicated to overthrowing the establishment, authoritarian aggression against perceived established authorities, as long as it’s advocated by revolutionary authorities; and conventionalism in terms of strongly adhering to the norms of behavior endorsed by revolutionary authorities.

    “In other words, high LWAs should differ from high RWAs only in the sense that they subscribe to different authorities. If a leader of a revolutionary organization’s cell makes a command, a high LWA should in theory be prone to obey that order. If the revolutionary leaders advocate vandalism or bombings of targeted buildings, a high LWA should be more prone, in theory, to follow through with such actions. If the revolutionary leaders wear combat fatigues, black armbands, and berets, a high LWA should do likewise—again, in theory.

    “Altemeyer’s (1996) own research didn’t quite square with the theory [hypothesis] postulated above, with nobody in his sample scoring above the moderate point on the LWA scale. However, in the process of comparing LWA and RWA scores, Altemeyer (1996) found four combinations of individuals:

    “1. Non-authoritarians: Non-authoritarians are individuals who score low on both the RWA and LWA scales. These are individuals who show no tendencies toward conventionalism, authoritarian submission, or authoritarian aggression. On measures of cognitive complexity, they should score relatively highly. As Altemeyer (1996, p. 223) characterizes them, they tend to be ‘against forcing conventions upon anyone, whether society’s or those of a revolutionary movement.’

    “2. Left-wingers: Left-wingers are individuals who score relatively higher on the LWA scale than others, and who score low on the RWA scale. However, their LWA scores remain only in the moderate range. Psychologically, these individuals show only a moderate amount of adherence to the norms of leftist authorities, submission to leftist authority figures, and no inclinations toward aggression sanctioned by leftist authority figures.

    “3. Right-wingers: These are people who score high on the RWA scale and low on the LWA scale. These are the standard right-wing authoritarians as described by Altemeyer (1981, 1988, 1996): highly conventional, submissive to established authority figures, favorable toward aggression sanctioned by established authority figures, and who are low in cognitive complexity.

    “4. Wild-card authoritarians: These are individuals who tend to be relatively high scorers on both the LWA scale and the RWA scale. One might characterize them, then, as people who seem to believe in submission, aggression, and conventionalism per se, would probably ordinarily support the established order, but would be willing to overthrow that established order if they perceived it to be corrupt or evil.”

  11. @jim2, October 27, 2016 at 8:32 pm

    “Maybe Altemeyer can be imported! Thanks for providing the link.”

    My pleasure. Clicking on the link will immediately afford his importation. 🙂

  12. @Steve Groen, October 27, 2016 at 6:27 pm
    “It’s ironic you [Toads] say that there are those on the Court getting what they want, because Justice Scalia was pretty good at writing opinions which suited the end he wanted rather than following precedent or even his own prior opinions.”

    Whereas the case you cite confirms your assessment of Scalia’s judicial “flexibility” when it seemed to suit his purposes, what I find truly repulsive is his and Thomas’ legal reasoning as cited here:

    “I don’t think that the failure at the court is one of empathy. I don’t ask that Thomas or Scalia shed a tear for an innocent man who almost went to his death because of deceptive prosecutors. And, frankly, Ginsburg’s dissent—while powerful—is no less Vulcan in tone than their opinions.

    “But this case is of a piece with prior decisions in which Thomas and Scalia have staked out positions that revel in the hyper-technical and deliberately callous. It was, after all, Scalia who wrote in 2009 that ‘this court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.’ [Emphasis added]

    “It was Thomas who wrote that a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form had no constitutional claim.

    “The law awards no extra points for being pitiless and scornful. There is rarely a reason to be pitiless and scornful, certainly in a case of an innocent man who was nearly executed. It leads one to wonder whether Thomas and Scalia sometimes are, just because they can be.”

    Although I strongly resist the temptation to judge someone as a person, no matter how odious some particular action of his or hers may be, I have found it desirable to recognize and point out patterns of unsavory behavior in some people, so as to reduce the likelihood of their having a deleterious effect on me and others.

    1. Ken Rogers: Agreed. I was never a fan of either of them, but in Gonzales v. Raich, Thomas got it exactly right, departing from his brother Scalia’s lead.

      1. I am a “fan” of both of them. And while you are correct that Thomas is more principled and more consistent, Scalia was still far better than most of the other Justices. In his later years (like Rehnquist before him) Scalia became more political and less faithful to his own judicial philosophy.

  13. Doesn’t America import it’s intellectuals? I’m surprised Turley hasn’t thrown out some red meat to his acolytes with the Bundy ruling??

  14. @Steve Groen, October 27, 2016 at 6:03 pm
    “Duke, remember Senator Strom Thurmond? I always loved seeing him sitting stiff in the corner of a committee meeting, sipping formaldehyde.”

    Thanks for the belly-laugh. I’d often wondered what measures ol’ Strom was taking to preserve his youthful appearance, and now I know. 🙂

      1. You really shoud read the rule book. A. Nominated B. Confirmed. That’s all the the qualifications required in two words. The Founders knew how to use the KISS principle. Of course back then people were educated.

  15. One more time. Read the Constitution There are two qualifications. Nomination and Confirmation. End of story. 240 years and not one attempt to amend. Zero, zilch, cerro, nada, goose egg.

  16. The oddest thing about Posner’s critique is that he has disqualified himself from the Supreme Court by declaring that he doesn’t care about what the Constitution or its Amendments actually says.

    I guess if one’s worldview is that using the Constitution as a basis for Constitutional Jurisprudence is incorrect, then every other Judge that does value the Constitution (or at least feels bound to it by oath) is unqualified.

    1. He made that declaration nearly 30 years ago in the pages of The New Republic.

  17. He’s right. But for Ginsburg and Breyer the rest of them are just hacks put on the court for political reasons that are not substantial enough to justify the nomination. Thomas, Alito and Roberts are particularly unqualified hacks though Roberts at least is enough of an establishment type that he doesn’t let Alito get too out of hand on his clear and hamhanded efforts to bend the law to the right in the service of his ideology and his religion.

    1. @Horuss All of them, including Ginsburg and Breyer, were nominated based on their anticipated legal positions. Please explain how John Roberts was not qualified to sit on the Supreme Court? He was a magna cum laude graduate of Harvard Law, managing editor of the Harvard Law Review, clerked for the Supreme Court, and was one of the most successful appellate and Supreme Court advocates in the country.

      1. You have to give Roberts credit for taking a few stands that were not just par for the course. But his idiotic statement during his confirmation hearings that a justice’s job is to “call balls and strikes” should have led to 100 questions about whether or not he thinks the law (or reality for that matter) are objective enough to call balls and strikes, and if so, why not just hire the law robot and dispense with justices altogether?

        “And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

        1. should have led to 100 questions about whether or not he thinks the law (or reality for that matter) are objective enough to call balls and strikes, and if so, why not just hire the law robot and dispense with justices altogether?

          If there is no such thing as conscientious judicial review, there is no justification for having the decisions of elected officials second-guessed.

          1. What on earth are you talking about? Elected officials need their decisions reviewed all the time. Most of them are self- (or corporate) serving dunderheads who couldn’t think their way out of a paper bag. Issa? FOx? Gohmert for chrissakes? I hope you were joking.

          2. What must be conscientious about it? The Justices don’t bring the cases, they decide them. Once the case is in front of them they need to resolve ambiguities and conflicts of laws.

        2. I am pointing out that Roberts, by the standards mentioned by Posner himself, is undoubtably qualified to sit on the Supreme Court. His stands, or lack thereof, aren’t really relevant to his qualifications.

          His statement was not idiotic, you are just interpreting it in a silly way. It was a metaphor. A Justice’s job (as an appellate court) is to decide cases by applying the rule of law to the facts. In the case of the Supreme Court there will almost always be some ambiguity in the law, or a conflict of two different laws (e.g. the Constitution and a statute). Resolving these ambiguities or conflicts should be a matter legal reasoning and legal philosophy (“calling balls and strikes”) not a personal preference of what the outcome ought to be (“pitch or bat”).

    2. Are you competing with Isaac for some sort of prize for spouting worthless nonsense?

    1. Duke, remember Senator Strom Thurmond? I always loved seeing him sitting stiff in the corner of a committee meeting, sipping formaldehyde.

  18. @StepStepSteponToads, October 27, 2016 at 10:50 am
    “He [Posner] isn’t a leftist. He’s an unsually obnoxious libertarian.”

    @StepStepSteponToads, October 27, 2016 at 9:26 am
    “If we lived in a just world, Richard Posner would be arrested, stripped of his citizenship in a brief administrative hearing, put on a plane to Argentina, and told if he ever attempted to re-enter the United States he would be summarily shot on the tarmac. So would about 4 members of the current Supreme Court.”

    Thanks for revealing your authoritarianism so starkly. Your doing so clarifies unmistakably your psychological orientation and supports my contention that it’s much more fruitful to assess someones’s socio-political posture across a libertarian-authoritarian axis than across a left-right one.

    Your repeatedly appealing to physical violence, whether to demolish a museum of which you disapprove or to execute a jurist with whom you disagree, is, of course, prototypically authoritarian, and inasmuch as you are, unfortunately, by no means alone in manifesting this proclivity for violently imposing your will, this is a social problem of major significance.

    As social psychologist Robert Altemeyer writes:

    “Eleven years later, as I am now definitely writing the last pages in my last book on the subject, I believe circumstances such as ‘9/11’ have nearly swept us to disaster, the authoritarian threat has grown unabated, and almost all the protections I saw in 1996, such as a ‘free and vigilant press,’ are being eroded or have already been destroyed. The biggest problem we have now, in my view, is authoritarianism. [My emphasis] It has placed America at one of those historic cross-roads that will profoundly affect the rest of its history, and the future of our planet. The world deserves a much better America than the one it has seen lately. And so do Americans. [Emphasis added]

    1. Ken Rogers: Great post!

      It really is X/Y-axes, not just an X-axis. Hitler and Ghandi might have held the similar positions on many social issues, but they were completely different in terms of libertarianism.

      Toads: care to see where the political compass places you? (It’s short, but is a pretty good indicator of authoritarian proclivities.)


      1. I might add one caveat to using the Political Compass application. Do not begin the test having a preconception as to one’s political leanings nor using the test to achieve a goal, if you do wish to have an accurate gauge of your stance politically.

        My observation of others shows to me that those having, for lack of better words, “self-righteousness” in pontificating their political view tend to proclaim that their score was far in one direction, when in actually if the test questions were answered without these preconceptions or goals it might have been more toward the Origin on the graph.

        1. Darren, it certainly is susceptible to manipulation and the questions can be interpreted differently, but if I answer the questions on the basis of what I think is being asked, I have found that my location on that graph doesn’t change much. I was a bit further out (a bit more extreme) on the perpendicular in the lower left quadrant this year as opposed to ten years ago although in the same general area.

          1. Two squares to the right of vertical and two squares below the horizontal. Funnily enough I fit another profile which listed me as a Constitutional Centrist. Having saved the URL I can now read each explanatory section. It seems though I’m right where I thought I was. Thanks for the opportunity to try that one.

    2. As social psychologist Robert Altemeyer writes:

      Robert Altemeyer is known for his ‘research’ ‘demonstrating’ that there is no ‘left-wing authoritarian type’. He’s also known for his ‘finding’ that anti-abortion protesters are ‘proto-fascist’. The man’s a clown.

    3. Physical violence? No. He’s an abusive public official, and is properly exiled, just like they did in ancient Athens.

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