Bench Memos

Posner’s Sloppy Sophistry—Part 3

See Parts 1 and 2

Before pointing out some further examples of the dismal quality of Judge Richard Posner’s ruling last week against Indiana’s and Wisconsin’s marriage laws, I’ll highlight that Posner’s abysmal performance is, alas, par for the course with him. There is surely no judge for whom the gap between the reputation for supposed brilliance and the sorry reality is greater. As law professor Orin Kerr wrote a couple of years ago:

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents.

As I noted two years ago, “Over the years, a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge.” Indeed, one accomplished appellate lawyer has offered this blunt assessment:

Posner is, bar none, the worst judge in America. He’s totally unprepared, irrational, and abusive. 

I’m agnostic on whether Posner has recently suffered a steep decline (“Posner’s losing it,” law professor Stephen Bainbridge observed two years ago) or whether he’s long been an embarrassment, but a lawyer who clerked on the Seventh Circuit many years ago suggests the latter:

As a judge, he seemed totally unconcerned with the details and the record, and at times, his opinions, though entertaining, bordered on the absurd. When I clerked, his style was very free-wheeling and unpredictable. He seemed to view precedent as marginally relevant. It was as if he went to his chambers after oral argument and banged out opinions in a stream of consciousness manner. His law clerks told me that they would try to fix his screw-ups when they found contrary precedent. It did not always work. For a guy with his obvious intellect, this was very surprising.

If you want still more evidence, see my series of posts on Posner’s “remarkably slipshod and untrustworthy” attack on Reading Law: The Interpretation of Legal Texts, the treatise co-authored by Justice Antonin Scalia and Bryan A. Garner—and on Posner’s downward spiral of  responses. 

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