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Posner Trashes 'Awful' Supreme Court, Law Clerks, and Justice Alito

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By Casey C. Sullivan, Esq. on November 03, 2016 12:56 PM

Richard Posner, the Seventh Circuit judge and relative legal celebrity, has been on a bit of rampage lately. This summer, he decried law professors as "refugees from other disciplines," said the posthumous tributes to the Justice Scalia were "absurd," and topped off his rant by declaring that there was no "value to a judge of spending decades, years, months, weeks, days, hours, minutes, or seconds studying the Constitution".

Now he's back at it, just a few months later. At a recent event, Judge Posner said that the Supreme Court is "awful" and has "reached a real nadir," with "only a couple of the justices" being "qualified." Next thing you know, he'll say the Cubs are worthless, too.

But Tell Us How You Really Feel...

Judge Posner's harsh SCOTUS critiques were made in early October, at an event for William Domnarski's new biography, "Richard Posner," but only gained widespread attention last week, when Above the Law sifted through the C-SPAN recording for the saltiest bits from "The Poze." And plenty of bits there were, with plenty of salt.

First, Posner noted that he, too, was writing a new book, "Strengths and Weaknesses of the American Legal System." "I have about ten pages on the strengths," he said, "and about 320 pages on the weaknesses."

I'm very critical. I don't think the judges are very good. 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.

Later, Posner explained that:

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.

He blamed low-quality justices and appellate judges on politicians and clerks. Politicians can score political points by nominating someone who meets a political, racial, or geographic criteria but who "is not particularly bright and doesn't have much experience." That's because "there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them."

When asked if judges should be forced to write their own opinions, he responded, "Oh, it'd be great! Half of them would resign immediately."

Justice Alito and the Most Tedious Opinion Ever

Speaking of opinions, Judge Posner seemed to hold one justice's writing in particular disregard. Discussing Justice Alito's dissent in Whole Woman's Health v. Hellerstedt, the Supreme Court case striking down Texas's restrictive abortion clinic regulations, Posner called the dissent out as the "most tedious opinion I've ever read."

Justice Alito's hyperconservative. He wrote a very long dissent, 40 pages. The only thing he said in his dissent was that the case should have been dismissed on the basis of res judicata because some of the plaintiffs attacking the Texas law had filed a previous similar case, which had been dismissed, and you're not supposed to relitigate the identical case. And Breyer, in his majority opinion, discussed this and pointed out there was some overlap in some of the plaintiffs, but there were loads of other plaintiffs who had had nothing to do with the earlier case.

And what he should also have said, which he did not say, is that res judicata is this common-law rule about trying to create finality in litigation, which is fine, but it's not part of the Constitution or anything, and this is an important issue we're trying to get settled -- so why should you fuss with res judicata, especially for 40 pages?

Posner Clarifies His Comments

"I don't like looking backwards," Posner declared when discussing the etymology behind judges' chambers and why he hates the term. But after his comments started making the rounds, he was forced to look back just a bit.

He wrote Above the Law to explain that his comments on "qualified" justices were not meant to imply that "the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam." He just meant "good enough to be a Supreme Court Justice."

There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I'm restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don't think so. Nine of the best 10,000? I'll give them that.

So... apology accepted?

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