Bench Memos

Law & the Courts

Richard A. Posner’s The Federal Judiciary—Part 3

In his preface, Richard Posner says that his new book “is a big book, though not huge—not in a class with Moby Dick.” True enough. But, like Moby Dick, Posner’s book provides, if unintentionally, an intriguing account of one man’s obsession. Perhaps it should have been titled Mopey Dick.

One of the most striking features of Richard Posner’s new book is his incessant carping about praise for Justice Scalia. It’s really something to behold.

Posner begins his very long chapter on the Supreme Court by complaining for some five pages (pp. 65-70) about praise that Justice Elena Kagan and others offered for Scalia, both before and after his death. He tries to couch his complaints as an observation on “the absence of realism, or … the absence of a culture of frank discourse, that characterizes public discussion of the American legal system,” but it would sure seem that something else is driving him to make these comments:

Justice Kagan’s statement that she had “boundless admiration and affection” for Scalia, that she “loved” him and “miss him every day,” was, Posner states, “fulsome” and “hard-to-believe” and (a page later) “mawkish.” He wonders if she might have been speaking “tongue in cheek.” Her statement that Scalia “will go down in history as one of the most significant of Justices” is “dubious,” and her reference to his “splendid prose” is “over the top.”

Posner contests a former law clerk’s statement that Scalia “had a contagious laugh that spread pure joy to those who heard it. He reports that he “did not find [Scalia’s] laughter contagious or react with pure joy.”

Posner says that he “was stunned to read” Cass Sunstein’s praise for Scalia as “one of the greatest justices in the Court’s history, and among its three best writers.” He finds it “difficult to believe” the first half, and he says that nine justices he names “and many others” “outclassed” Scalia as a writer. As for Sunstein’s “To know him was to love him”: “I knew him too, I liked him well enough, but love him? Ridiculous!”

One page later, Posner complains about praise that Kagan offered for Scalia (“one of the most important” justices) before his death. “Colorful, outspoken, disruptive, yes,” says Posner, but “unlikely” to be recognized as one of the most important justices. Even in saying that Scalia “deserves credit” for discrediting legislative history, Posner contends that Scalia “was pushing against an open door.” Posner then turns to petty quibbling over praise for Scalia, including by Kagan, at the renaming of the George Mason law school after him.

After a respite (perhaps the bile ducts needed time to refill), Posner then spends four pages (pp. 95-98) complaining about praise for Scalia by members of the Harvard law faculty. The “liberals” “fairly tripped over themselves in lauding a deceased ultraconservative Justice of whom they had doubtless strongly disapproved.” One professor who was a former clerk “gave no examples” in stating that Scalia followed his principles. Another says that Scalia “changed our framework,” but Posner says he doesn’t understand what that means. The observation by yet another that Scalia was a “superb” justice leads Posner to allege various weaknesses of Scalia’s (for example, “his aggressive religiosity”) that “placed him well below the most illustrious of his predecessors.” On yet another professor’s statement that “I stand sometimes almost in awe” of Scalia, Posner replies: “It never occurred to me to ‘stand sometimes almost in awe’ of him.” Posner then complains that the “ultraliberal Martha Minow … raved about Scalia.” (His emphasis.) And, in contesting her praise, he claims that Scalia had “rages” that were “legendary” (not something I ever heard of) and even baselessly insinuates that Scalia might not actually have co-authored (“whether nominally or not I don’t know”) the treatise with Bryan Garner that was the target of Posner’s woefully incompetent attack five years ago.

Posner tops it off by saying that a “more dignified” reaction of the Harvard law school faculty “would have been to say nothing” about Scalia’s death. But perhaps someone who spends pages carping about praise for a deceased person shouldn’t be offering lessons on what is dignified.

Okay, Posner’s tiresomeness is tiring me out, so I’ll sweep more broadly.

Barely ten pages later, Posner is at it again, with a four-page section that criticizes Justice Kagan and D.C. Circuit judge Brett Kavanaugh “for their exaggerated conception of Scalia’s significance.”

Then Posner devotes 2+ pages to block-quoting Jeffrey Toobin’s nasty and ill-informed attack on Scalia.

Then another three pages in which Posner finds “unfathomable” Justice Kagan’s praise for Scalia and reprints an insipid New York Times op-ed that he and law professor Eric Segall wrote attacking Scalia. Weirdly, Posner modifies the op-ed to add in some jabs at Kagan for her “love” for Scalia.

Then a block quote of two more pages of what Posner aptly calls a “caustic assessment” of Scalia by Segall.

Then, in discussing the nomination of Neil Gorsuch, Posner says he finds “hard to believe” an article that states that Gorsuch cried on hearing the news of Scalia’s death. As I pointed out (in my “What a jerk” post) when this passage was reported some months ago, Gorsuch himself, in his much-publicized speech in praise of Justice Scalia’s legacy, recounted his crying. So, as a minute of research would have revealed, Posner didn’t have to attribute the supposedly “hard to believe” claim to a secondary source and could simply have taken Gorsuch’s word for it.

Then two pages criticizing the Georgetown law school dean for having “out-Kaganed Kagan, out Minowed Minow” in his praise of Scalia.

Then three more pages of a block quote by Segall criticizing Scalia.

Another respite, then a block quote from an unnamed correspondent, said to be a law school classmate of Scalia’s, offering a cartoonish account of him.

And, finally (though I’ve probably missed some of Posner’s slams), five pages in the epilogue endorsing, and piling on, Emily Bazelon’s laughably incompetent account of Scalia’s views on science, and citing and quoting other criticisms of Scalia. (I will probably have more to say on the science stuff.)

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