Judge Easterbrook‽

Eugene Volokh points out that a recent Seventh Circuit opinion (authored by Judge Frank Easterbrook) appears to include an interrobang:

We have mentioned that Booth Trust and Gross did not make a demand on the directors before filing suit, and that neither plaintiff nor any other investor (in his role as investor) suffers antitrust injury. Plaintiffs say that investors still can gain from this suit, because removing interlocking directors from the board will eliminate any chance that the United States will file a §8 suit to remove them. We don’t get it. In order to avoid a risk of antitrust litigation, the company should be put through the litigation wringer (this suit) with certainty‽

I confess that after reading this paragraph several times I actually have no idea what it is supposed to mean, and I haven't read the whole opinion to find out. So I can't say whether the interrobang was intentional or a bizarre typographical error. But the italics (in original) make it seem intentional.

And that's a good thing‽ 

Judge Easterbrook on ideology at the Supreme Court

Some interesting comments from Judge Frank Easterbrook's commencement speech at Swarthmore:

We have about a month to go in the Supreme Court's current term. Many 5-4 decisions are impending. The press will bemoan the Justices' inability to agree and assert that the Justices' ideology explain the divisions. Those of you who have encountered the attitudinal model in class will nod sagely. You, and the press, will be wrong. 

Suppose the Justices who are usually called "conservative" were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court. 

To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideological difference among the judges - which also makes it hard to blame politics for the disagreement we actually observe. The rate of disagreement among the Justices has been stable for more than 70 years.1 The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability.

"No matter what one makes of associational rights, friendship cannot have greater status than political speech."

At least, not according to Judge Easterbrook.

Which do you think has greater status, Mr. Gillette: friendship or political speech?