Bench Memos

Law & the Courts

Posner Self-Immolation Watch

From Above the Law, three excerpts from some recent comments from Seventh Circuit judge Richard Posner:

I think the Supreme Court is awful. I think it’s reached a real nadir. Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great.

[I]f you look at the Supreme Court, for example, of the nine justices — I’m bringing Scalia back from the dead to have the standard number of justices — of those nine, one had been in a trial courtroom. It’s ridiculous to have an appellate judge who doesn’t have trial experience.

The only two justices who are qualified are Ginsburg and Breyer. Their opinions are readable, and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions.

It would seem that Posner’s judgment continues to be demented by a severe case of SCOTUS envy. Just a few quick observations:

1. Who knows what Posner means by “qualified”? If he means to incorporate a justice’s jurisprudence into the assessment, it’s strange that he would select Justice Breyer and Justice Ginsburg as the two best of a motley lot. Justice Kagan, for example, would seem closer to Ginsburg than Breyer is. (In a book eight years ago—which I negatively reviewed here—Posner called Justice Breyer a “bricoleur” and an “intermittent pragmatist whose pragmatism is heavily leavened with liberal political commitments.”)

If you look at qualifications apart from jurisprudence, many of the current justices are, by any ordinary measure, very well qualified.

2. With his characteristic sloppiness, Posner is wrong to say that only one of the current justices “had been in a trial courtroom.” Justice Alito was a United States Attorney for some 2-1/2 years, and Justice Sotomayor was an assistant district attorney for some five years and a federal district judge for six years.

If it’s “ridiculous to have an appellate judge who doesn’t have trial experience,” Posner should never have accepted his seat. Posner evidently imagines that he has compensated for his deficiency by occasionally sitting by designation as a trial judge.

3. I also find it strange that Posner regards only Ginsburg and Breyer opinions as “readable” and “sometimes quite elegant eloquent.” Limiting myself to the liberal side of the Court (lest I be thought to be indulging my ideological preferences), I think that Kagan’s opinions fare quite well compared to Ginsburg’s and Breyer’s


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