Richard A. Posner’s The Federal Judiciary—Part 1

by Ed Whelan

You sure shouldn’t judge a book by its cover. Seventh Circuit judge Richard A. Posner has just published another book—or, perhaps more accurately, another pretense of a book, with a grand title, stylish cover, and the imprimatur of Harvard University Press. But when you open it up, things quickly turn bad. Indeed, The Federal Judiciary: Strengths and Weaknesses may well be the worst-edited book that I have ever tried to wade through.

This, alas, is nothing new for Harvard University Press, which seems happy to serve as a vanity publisher for whatever mishmash of ideas Posner slops together. Nine years ago, in my broadly unfavorable review of Posner’s How Judges Think, I observed that the book was “at least one thorough redraft short of being ready for publication” and “reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence.”  Ditto, four years ago, for Posner’s Reflections on Judging. (Posner has in lots of other ways amply earned my low regard; here’s just one of many examples.)

This time, Posner gives a warning of sorts, as he states in his preface that the book “is more a macédoine than a treatise” and “contains a good deal of quoted material.” Macédoine, it turns out, is a fancy word for a confused mixture, a hodgepodge, a jumble, though I’m guessing that Posner intended a more favorable meaning (a mix of fruits or vegetables).

By “a good deal of quoted material,” Posner refers to his countless block quotes, many running for pages. He quotes the opinions in one of his cases for twenty pages, and another order of his for twelve pages. He includes the entirety of a favorable review of Reflections on Judging (3 pages); a journal’s explanation (crediting Posner) of its reasons for abandoning the Bluebook system of citation (2+ pages); his own written advice to his law clerks on citation (3-1/2 pages); repeated long excerpts from his buddy, law professor Eric Segall (too many to count, but I’d be surprised if fewer than ten pages); Jeffrey Toobin’s Scalia-bashing (2 pages); a long Slate exchange with Akhil Amar (5+ pages); a tendentious letter from an unnamed correspondent; and an “open letter” from liberal academics to Donald Trump (4+ pages). (I’ve made no effort to be exhaustive and have probably omitted some other glaring examples.)

Worse, when Posner’s not dumping copy-and-paste excerpts on the reader, he’s bouncing around from scattered thought to disjointed observation to tiresome repetition. “Moving on” and “Enough …” are feeble transitions that he resorts to on multiple occasions.

The book is also very poorly organized. You’d think that its three chapters on the three tiers of the federal judiciary would provide a sensible way for Posner to structure his thoughts. But he instead begins with a rambling 41-page introduction and then, in his first chapter, thrusts the reader into the minutiae of Round Five (or is it Round Four?) of a back-and-forth that he’s been having with a law professor on various topics. When he does finally turn to his first tier (the Supreme Court), he spends about six pages complaining about Justice Kagan’s praise for Justice Scalia and then fourteen pages on an “edited and somewhat amplified” version of transcribed remarks that he made off the top of his head at a conference. Posner then divides the rest of the 150+-page chapter into a Part One and a Part Two, but if there’s any sense to the division, I missed it. (Part Two begins: “I have at times drifted from the subject of this chapter, which is the Supreme Court, and let me return to it.”) After his chapter on the third tier (the district courts), he tosses in a chapter whose material, if worth including at all, could sensibly have been divided among the tiers. And his conclusion is followed by a 30-page epilogue that might as well have been titled “Some Other Things I’ve Just Thought Of”: far from being confined to new events, it includes his criticism of President Obama’s praise of Elena Kagan in 2010.

As I said four years ago of Reflections on Judging, Posner’s new book is too wildly undisciplined for me to attempt a comprehensive survey and critique of its arguments. But I will offer some further observations in follow-up posts.

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