Monday, June 24, 2013

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

When I was in law school, some of my fellow classmates and I enjoyed reading this type of opinion because it seemed like pretentious lawyers were being skewered and everyone likes that. Later, I realized that judges who issue these kinds of opinions were really just bullying lawyers who could not respond for fear of torpedoing their case or some future case where they might have to appear in front of the same judge. For a judge to pick on lawyers does not require any courage on the part of the judge. It is closer to cruelty than courage.

I now realize that it takes courage to from punch up. Senior Judge Thorwald Anderson, telling the Minnesota Supreme Court that it would have failed a freshman logic course is an example of this type of punching up.

What should we make of Judge Richard Posner's latest offering on Slate's Supreme Court Breakfast table? Judge Posner opines that Justice Scalia is kind of hypocritical in his dissent in Decker v. Northwest Environmental Defense Center. Judge Posner also suggests that Justice Scalia is a lazy and uninformed for concurring in Association for Molecular Pathology v. Myriad Genetics, Inc. Judge Posner then criticizes Chief Justice Roberts's dissent in City of Arlington v. FCC for offering "no evidence" to support the Chief's proposition that the size of federal government has grown since the Constitution was written. As an aside, really Judge Posner? Is there really a need for a citation to support that particular proposition?

Justice Posner closes by emphasizing that he is "throwing a few darts rather than attempting a balanced assessment of the Supreme Court’s performance in the current term." Because I guess no one would want to read that. What do you think Mr. Torvik? Is Judge Posner acting with courage or just acting like an Internet troll?

1 comment:

  1. I don't know if he's trolling, but I don't think it's particularly courageous, either. Judge Posner has life tenure. Nothing bad is going to happen to him, and nothing bad really could happen to him, in response to these comments. I suppose Chief Justice Roberts probably won't appoint him to the FISA court (if appeals court judges are even eligible). Maybe he's off Justice Scalia's Christmas card list. That's about it.

    A few weeks ago I got after E. Gordon Gee, the outspoken president of The Ohio State University. I noted that he is 69-years-old and rich, and that he should just retire so that he can say whatever he wants. He took my advice.

    Well, Judge Posner is 74, and presumably pretty well off. But he doesn't even have to retire to say pretty much whatever wants. That's a great gig.


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