Bench Memos

Law & the Courts

Richard A. Posner’s The Federal Judiciary—Part 4

See Parts 1, 2, and 3

Well, I’m back from vacation, and I’m done proofreading the galley of the wonderful new book of Justice Scalia’s speeches that I’ve had the privilege of co-editing, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (pre-order now; to be published on October 3). So let me turn back to Judge Posner’s latest pretense of a book. (I’ll also note that I’ve retracted point 7 of my Part 2 post.)

Posner’s bizarre Mopey-Dick obsession with attacking Justice Scalia is perhaps most ridiculous in his wholesale embrace in his epilogue (pp. 407-410) of Emily Bazelon’s New York Times Magazine piece smearing Justice Scalia for his views on science. You might charitably be inclined to assume that Posner was just clueless on the entire matter, and his mistaken claim that Justice Thomas joined a 1987 dissent of Scalia’s (Thomas became a justice four years later) would support such an assumption. In fact, however, I have ample reason to believe that Posner is deliberately deceiving his readers.

One big clue is that Posner buries in a footnote a citation to Ian Samuel’s devastating critique of Bazelon’s piece. Posner cites Samuel only for the proposition that the “accuracy of [Justice] Thomas’s discussion of genetics”—in the part of a 2013 opinion (in Myriad Genetics) that Bazelon and Posner fault Scalia for refusing to join—“has been questioned.” But he entirely ignores, and hides from his readers, Samuel’s major conclusions—that, contra Bazelon, Scalia “was not wary of science” and that “the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.” It’s amazing that anyone could have read Samuel’s critique and misused it so selectively.

Another big clue: Last January, as it happens, a mutual acquaintance of Posner and me copied both of us on an email exchange he was having with Posner. The acquaintance had forwarded to Posner this post of mine criticizing the Bazelon piece, and Posner responded to him in a way that conveyed that he had read my post and thought that I had an incomplete understanding of Scalia’s record. Perhaps my understanding is incomplete. But what sort of excuse is that for parroting charges of Bazelon’s that I had shown to be unsound—and for which Posner, neither then nor now, has any answer?

The only apparent purpose of Posner’s recycling of Bazelon’s charges is to give him an excuse for including in his epilogue (which is supposedly limited to events “occurring after December 10, 2016, [and] to discoveries [Posner has] made since then”) his attack on Scalia’s supposed views on evolution. Let’s take a look at that attack:

Posner claims (p. 410) that Scalia “implicitly rejected evolution by his repeated assertions that the earth (indeed the universe), and therefore humanity, is only five thousand to six thousand years old.” Oddly, in a book with hundreds of footnotes, Posner does not provide a single citation for these supposed “repeated assertions” by Scalia, and I’ve never before heard of them. That doesn’t stop Posner from spending a half page detailing Scalia’s imagined beliefs about Adam and Eve.

Posner similarly claims (p. 408) that Scalia said that the universe was created “about 5000 years ago.” But again, he provides no citation in support, and I don’t see anything in a quick Google search that I’ve done that provides any evidence for Posner’s claim.

To be sure, Scalia did say in a 2015 high-school graduation speech that “humanity has been around at least some 5,000 years or so.” (Emphasis added.) That statement is surely one that Posner would agree with—note that the position that he attributes to Scalia says “only” rather than “at least.”

One might well object to Scalia’s leaving open the possibility that “humanity” has been around for only 5,000 years. But that would beg the question of what he meant by “humanity.” He could well have meant human civilization. One definition of humanity, after all, is the “learning or literature concerned with human culture,” and on that understanding it’s sensible to have humanity begin with the appearance of writing systems some 5,000 to 6,000 years ago.

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