The Falsifiable Justice Kennedy


The Green Bag’s most recent Micro-Symposium is worth checking out.

My favorite piece is Jonathan Mermin’s “On the Importance of Headings and Subheadings in Judicial Opinions.” It exhibits the mixture of whimsy, substance, and law-nerdiness characteristic of great Green Bag writing.

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Posner’s Inadequate Apology for Dismissing Study of the Constitution

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.

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Posner’s Unjustified Attack on Scalia

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. 

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Public Choice Challenges to Originalism

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, 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.

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Posner’s Tyranny of Expertise

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.[1] 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.

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Business and Judicial Bias

At the volokhconspiracy, Jonathan Adler takes shots at a law review study by Lee Epstein, William Landes, and Richard Posner, purporting to document the Roberts Court’s unprecedented pro-business bias. The study was reported in a New York Times piece by Adam Liptak. After noting significant methodological flaws in the study (which, admittedly, I haven’t read yet but which seems just as shoddy as the “judicial behavior” literature in general), Adler comments: Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s…

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The Administrative State, Once More: What’s Law But a Second-Hand Devotion?

They’re on to me. I’m “disgruntled” with my profession (Administrative Law), says Stephen Bainbridge; the whole field is a fraud.

Sort of—but not quite. In coming months I’ll devote a number of posts to the pathologies of our administrative law. To avoid further misunderstanding and to keep me gainfully employed, let’s take this from the top.

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Richard Posner, Out to Lunch with Eliot Spitzer

Graciously descending from the heights of the Seventh Circuit bench and his post as King of every intellectual compost heap, Judge Richard Posner granted an interview to viewpoint, hosted by Eliot Spitzer. For those who have followed the judge’s pronouncements over the past few years, there is not much new here. But you still have to see it to believe it, or my comments below. Keep controlled substances within reach: the content would make the Good Humor man go postal, and the wanton self-destruction of a good man is never a pleasant sight.

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Posner on Scalia and Garner’s Reading Law I: Textualism and Conservatism

Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar.  There is no way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction.  As with most hatchet jobs, it reflects as poorly on its author as on its target.

I say this with some regret as I believe that Richard Posner is a genius – a genius in the sense that he is capable of doing what it is hard to imagine a human being doing.  His incredible output at a high quality is just amazing.  It is not that any bit of it is so dazzling, although it is quite good; it is the incredible quantity of it at that high level.  But, of course, that he is a genius does not make him right.  Nor, as is most applicable in this case, does it mean that he does not let his passions get the better of him.

I am not sure how much to blog about this.  But as I read through the review, so much is wrong that I thought I would just start discussing it.  We will see how many posts I can write about it before tiring.  For a more systematic criticism of Posner by someone (unlike me) who has read the Scalia and Garner book, see Ed Whelan’s post.  I should note that I don’t agree with Scalia about everything and Posner does make some good points.  But the weaknesses of his review are pretty glaring.

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Judge Posner’s Goofiness

Recently, Judge Richard Posner said, "I've become less conservative since the Republican Party started becoming goofy."  A very peculiar claim in a couple of ways.  I had the same reaction to this that David Bernstein had.  Will Posner respond to Bernstein?  Judge Posner is probably a genius, but what possibly could he say?