After taking aim at Supreme Court Justice Antonin Scalia last summer, appeals court judge Richard Posner has broadened his attack to include the entire Supreme Court, decrying what he said was its “silly” behavior on and off the bench.
In a Chicago speech on Nov. 15, Posner said justices have become such active questioners that “lawyers can hardly get a word in edgewise.” He added, “All the jabbering [by the justices] at oral argument is very silly; there’s a lot of clowning around, very undignified.” Posner continued with a world-weary sigh, “But there’s no more dignity in American life” anymore, so his criticism of the court on this score was “totally inconsequential.”
Posner also sharply criticized justices for participating in “ridiculous” mock trials involving fictional characters like Hamlet or Richard III, or debating whether William Shakespeare actually wrote the plays attributed to him. “This is crank stuff,” said Posner of the Shakespeare debate. “It’s flying saucers – crazy. They have no competence. That’s an issue for Renaissance historians.” In 2009, The Wall Street Journal reported that Posner’s fellow Chicagoan, Justice John Paul Stevens, had cast his lot with those who doubt Shakespeare’s authorship.
The prolific Posner, a longtime legal scholar and judge on the U.S. Court of Appeals for the 7th Circuit, spoke Nov. 15 at a symposium on the Supreme Court and the public at the Illinois Institute of Technology’s Chicago-Kent College of Law, sponsored by its Institute on the Supreme Court of the United States. The conference took an analytical look at the ways in which the court interacts with the public and the media.
Posner’s announced topic was the Supreme Court and “celebrity culture,” which seemed to forecast another round in his high-profile feud with Scalia. The spat began in August with a critical review of Scalia’s book by Posner in The New Republic. Scalia returned fire, accusing Posner of lying, and it turned into a long-running public debate between the two legal celebrities.
As it turned out, Posner did not mention the Scalia imbroglio until he was asked about it after his talk. Posner said he had been asked “very innocently” by the magazine to review the book Scalia co-authored with Bryan Garner on the subject of interpreting legal texts. Posner checked some of the book’s citations and found several examples of what he said were misstatements of what the cited precedents actually said. Posner said he was “surprised” by Scalia’s reaction, and allowed that he did not much like being called a liar. But, he shrugged, “I’m not suing him for libel.”
Posner’s broader attack on justices’ behavior on the Court was clearly based on his own experiences at the court when he was a law clerk for the late justice William Brennan Jr. nearly 50 years ago. At that time, Posner said, justices were “very quiet,” and “did not engage in public intellectual activities.” With the exception of Justice William O. Douglas and his “irregular personal life,” Posner said, the justices were “cloistered.”
But the current court is drastically different, Posner said, in part because the justices have greater access to the media, which are “desperate for content.” Posner said, “A cat video can become famous in seconds,” and so too, justices can and do sit for media interviews much more than they used to.
But the main reason for the justices’ expansion of their “public intellectual activities,’ Posner said, is that “they have a lot more time on their hands.”
When Posner was a clerk at the court, the justices had half as many clerks (two instead of the current four) and twice as many cases to decide (150 or so instead of roughly 75.) “A Supreme Court clerkship was not that big a deal,” Posner said.
Now, the competition for clerkships is intense, and the quality of their work has increased. With the cert pool reducing the workload for individual clerks, Posner said, there is “pressure on justices to delegate to their clerks.”
The net result is that justices have far more time for travel, writing and other pursuits than they once did. With higher quality staff, Posner said, they also come to oral argument more prepared and confident that they can ask the advocates questions “without embarrassing themselves.”
Once two or three justices became loquacious during oral argument, Posner said, pressure built on the rest to do the same, lest they be viewed as “wallflowers.” So now, all the justices except Justice Clarence Thomas have joined in what Posner views as an undignified free-for-all at oral argument.
Equally undignified, according to Posner, is the justices’ participation in fictional moot courts. He singled out a mock court-martial of General Custer for losing the Battle of the Little Big Horn. For that 1998 event, Justice Ruth Bader Ginsburg donned a post-Civil War uniform.
“Just because you are prominent in one field,” Posner said, does not mean that “you can offer irresponsible opinions in another field.”
As Posner offered his critical opinions of the high court, it occurred to several members of the audience that Posner, like the justices he was criticizing, can dominate oral arguments with aggressive and frequent questioning. And as author of more than 40 books, Posner has also opined about subjects ranging from economics to sex and morality, outside the professional competency of most judges.
During a question-and-answer period afterward, Chicago-Kent professor Carolyn Shapiro, who once clerked for Posner and for Justice Stephen Breyer, had the temerity to ask Posner how he decides what topics he feels qualified to write about. Posner said he writes about subjects he feels comfortable with, adding that his broad range of writing “has never gotten me in trouble with litigants.” He explained that he has never been asked to recuse himself based on opinions expressed in his books.
Tony Mauro can be contacted at firstname.lastname@example.org.