Bench Memos

Law & the Courts

Judge Posner Is Beyond Catty

Every few years or so, it seems, Judge Richard A. Posner hastily copies and pastes his recent meandering pieces into something that has the outward appearance of a book. (I’ve reviewed earlier efforts here and here.)  From a tweet today, I’ve learned of this passage from his forthcoming regurgitation:

A recent article states that [Neil] Gorsuch “confessed to having cried on the ski slopes when the news reached him that [Justice] Scalia had died.” I find that hard to believe, even if one ignores the implausibility of someone’s accosting Gorsuch on the ski slopes to report Scalia’s death. Scalia was a month short of his eightieth birthday when he died, and though the details of his very poor health had not been published he was known to be obese and (despite his age) a heavy smoker, facts that coupled with his age augured a short remaining lifespan.

What a jerk.

For starters, as anyone who paid a modicum of attention to the Gorsuch nomination might recall, Gorsuch himself, in his much-publicized speech in praise of Justice Scalia’s legacy, offered this preface:

A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.

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. Nor would he have had to ponder “the implausibility of someone’s accosting Gorsuch on the ski slopes.” (Does Posner not know that phones work on the ski slopes? How could he not have thought it obvious that someone—Gorsuch’s wife or one of his colleagues or law clerks—would call him immediately with the news?)

Further, in case Posner somehow missed it, Scalia’s sudden death triggered intense mourning across the country. That’s in part because whether or not people cry on the news of someone’s death depends not so much on whether a death is statistically foreseeable but rather on whether they are fond of and admire the deceased and whether the death, even if statistically foreseeable, is sudden.

Posner’s characterization of Scalia as “obese” is also gratuitously nasty. To be sure, that characterization might well be defensible under the Body Mass Index, which results in more than 1/3 of American adults being labeled “obese.” But in common parlance “obese” is reserved for extreme cases.

Posner has volunteered, “I have exactly the same personality as my cat…. Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.” Yes, indeed. Decent human beings aim higher.

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