Identifying the Implausible

Experiences accumulate – live long enough and you’ll find yourself in the thick of things you never imagined. We were all long-haired radicals out to change the world in college in the late sixties, more or less, but two decades later it was that afternoon at the Pentagon, making small talk with Ronald Reagan’s second secretary of defense, Frank Carlucci, simply because the second father-in-law was one of Reagan’s assistant secretaries of defense. Then it was off to the Christmas party hosted by the eccentric surgeon general at the time, C. Everett Koop. How did that happen to a bleeding-heart liberal? It seems to have had something to do with leaving teaching in the early eighties and heading off to California, then finding a job in aerospace – in training and development, nothing fancy – and then drinks with folks after work, and the usual parties, and then hooking up with someone when things clicked. It happens, but it seems odd to have been chatting away with the top guys in Washington back in the day when Saddam Hussein was our ally – they said so, because Saddam Hussein would cause those creeps in Iran no end of trouble. That was all they said, and the rest was typical Republican stuff – spend lavishly on the military and cut taxes on the rich (the only good people in America) and end welfare, because there were all those welfare queens out there, and marginalize whatever long-haired hippies were still left over from the damned sixties. It seemed best to nod politely and say nothing. At least Koop smoked a pipe. We had something in common.

The marriage didn’t last, but these things kept happening. No one knows anyone who has argued in front of the Supreme Court, or only important people know such important people, but a decade ago there was the woman who was commenting on the same Paris website a friend was managing, who realized we should have known each other from college, but didn’t. We traded lots of emails about France and this and that, but as she was then an assistant state attorney general in the Midwest, the talk turned to law, mostly about capital punishment. She was all for it. Bleeding-heart liberals from the sixties are not, so we both clicked away at our keyboards. Nothing came of it, but she had her stories about arguing in front of Antonin Scalia. It seems he really was a mean bastard, and dismissive. He didn’t want to hear it, whatever it was. Everyone knows this now, after all these years, but she was there. She had her stories. She didn’t like being treated like a silly little girl. Scalia might not have intended that, but that’s how she felt – and sorry, those stories are private. She was unhappy.

The question had to come up. What did she want? Ah, that was easy. She preferred arguing before a gentleman, perhaps, and she made it clear she was impressed with Richard Posner – appointed by Ronald Reagan in 1981 to the Chicago-based Seventh US Circuit Court of Appeals. He asked good questions that made her think harder, and he wasn’t stuck in the mud of any particular ideology or grand legal theory about what the framers were really thinking about on some Tuesday afternoon long ago. He’d listen and think too. He’d also written articles and books on the law and economics, the law and literature, and on the federal judiciary, on moral theory, on intellectual property, on antitrust law, on public intellectuals, and on legal history too. Cool, and he was dead-flat fluent in French too – but that never came up. Yes, he was a conservative, but he was and is a pragmatist. He seems to loathe Republicans in general, not that he cares for most Democrats. He likes to think for himself. The one curious thing about this is that in 1969, Posner joined the faculty of the University of Chicago’s law school, where he’s still a senior lecturer and where his son, Eric Posner, is a professor specializing in constitutional law. Eric Posner and Barack Obama were classmates at Harvard Law School. It’s a small world, or these constitutional law guys stick together. But Posner, the elder, the judge, was her guy.

We’ve drifted apart since then, but two years ago there was the Scalia-Posner feud that Eric Segall explained at the time:

Over the last couple of weeks, Justice Antonin Scalia and Judge Richard Posner have been engaged in an unusual public feud over the role that legal rules play in judicial decision making. In The New Republic, Judge Posner wrote an exceptionally harsh review of Scalia’s new book Reading Law: The Interpretation of Legal Texts, written with Bryan Garner. Scalia’s book presents over 50 canons or legal rules that he and Garner suggest can and do help judges decide hard legal issues. In a lengthy response, Posner demonstrates that Scalia’s rules cannot decide cases, that the sources and cases the authors cite don’t stand for the propositions for which they are asserted, and that, of course, at the end of the day, what decides cases are the judges’ personal and political values, preferences, and balancing of the equities of the parties’ positions, not pre-existing legal rules.

Do legal rules and canons of interpretation decide cases? Of course not, Posner argues forcefully and persuasively. After his review was published, Scalia followers, fellow conservatives, and Garner, the co-author, took great offense in various forms of social media.

It was ON! Segall covers all the back-and-forth, but the salient points seem to be these:

There is a lot more going on here, and much more at stake, than an “inside baseball” squabble over legal rules. In light of Scalia’s importance as a political actor who makes a big difference to how this country is governed, the question is whether he is an appropriate messenger for the proposition that judging involves mostly rule following and not the exercise of personal discretion. The answer is no.

Scalia purports to be a “textualist-originalist” and he claims to apply that philosophy to his work on the Court. Constitutional interpretation should be about text and history, not personal values. The problem is that almost no one believes this anymore and Scalia’s public defense of the indefensible probably accounts for the tone of Posner’s review.

An example:

The drafters of the Fourteenth Amendment did not believe racial preferences for blacks violated the Equal Protection Clause, yet Scalia, despite his alleged devotion to originalism, has never voted to uphold an affirmative action program. The drafters of the First Amendment believed that corporations had no legal status separate from the rights given them by the state, yet Scalia claims corporations have the same First Amendment rights as natural persons. And, just to be politically neutral about all this, the founding fathers would not have recognized flag burning as “speech” protected by the First Amendment, yet Scalia voted to reverse the conviction of a flag burner on First Amendment grounds. Scalia relies no more (or less) on text or history than any other Supreme Court Justice; he just indignantly claims that he does.

Posner told Scalia, politely, and in detail, that he was full of shit, because things don’t work that way:

Because Posner believes judging, especially at the Supreme Court level, is about values and discretion, he urges the Court to defer to the elected branches absent a clear conflict between a law and constitutional text. Scalia does not apply such deference, though he often claims he does.

Do judges decide by rules or by discretion? Hell, if they decide by rules alone, those rules written down over two hundred years ago, and amended occasionally but very rarely, then the work of the Supreme Court could be automated. All of computer programming comes down to interlocking rules-based if-then operations. Any desktop computer could handle Supreme Court decisions. Someone might even write a smartphone app for this sort of thing. Scalia was arguing that he could be replaced by a few thousand lines of well-written code, as long as he gets to write the code.

Posner doesn’t work that way:

Acting with unusual swiftness, a federal appeals court in Chicago upheld on Thursday lower court decisions that found same-sex marriage bans in Indiana and Wisconsin unconstitutional, blasting arguments in favor of the bans as “so full of holes” that they were laughable.

The decision by the 7th Circuit U.S. Court of Appeals, coming just nine days after oral arguments were held, joined the tide of recent cases across the nation declaring same-sex marriage bans discriminatory.

But while the ruling marked a clear-cut victory for gay rights, nothing will immediately change in either Wisconsin or Indiana for same-sex couples. Both states vowed to appeal to the U.S. Supreme Court, adding to a growing list of cases from other states with pending petitions before the nation’s highest court.

Yep, this will go to the Supreme Court, and Posner is sticking it to Scalia:

The strongly worded opinion written by Judge Richard Posner echoed his pointed questioning during the arguments on Aug. 26. He described the gay and lesbian community as among the most “misunderstood, and discriminated-against minorities in the history of the world” and said that the denial of their right to marry has been a source of “continuing pain.”

“Marriage confers respectability on a sexual relationship,” wrote Posner, a Republican appointee. “To exclude a couple from marriage is thus to deny it a coveted status.”

Known for his independence as well as a caustic wit, Posner had particularly harsh words for the argument made by attorneys for Indiana that marriage is intended only for procreation and therefore only heterosexuals should benefit from the perks of matrimony, such as filing taxes jointly. The judge noted that infertile heterosexuals were free to marry – even first cousins.

“Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?” Posner said. He said Indiana had “invented an insidious form of discrimination: favoring first cousins provided they are not of the same sex, over homosexuals.”

What will Scalia make if that? Mark Joseph Stern sees this:

In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry. …

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart. Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost any interpretation of the equal protection clause.

Stern quotes Posner:

The government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of government encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage.

And this:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.


This is all very amusing. But Posner has a serious moral and legal point to make. The states’ arguments against gay marriage aren’t just irrational: They’re insulting, degrading, and downright cruel to the adopted children of gay couples. Posner describes this case as being, “at a deeper level,” about “the welfare of American children.” Two hundred thousand children are being raised by gay couples in America, including several thousand in Indiana and Wisconsin. Both states admit that children benefit psychologically and economically from having married parents. These facts would seem to suggest a compelling interest in support of gay marriage, since banning it actively, demonstrably harms children. …

But who could gay marriage bans possibly benefit? Once again, Posner asked this question at oral argument and received an evasive response.

It’s clear from his opinion that Posner has rifled through the states’ extensive briefs to find an answer to this question – and come up short. There is simply no harm, Posner writes, “tangible, secular, material-physical or financial, or … focused and direct” done to anybody by permitting gay marriage. Conservative Christians may be offended, but “there is no way they are going to be hurt by it in a way that the law would take cognizance of.”

Stern is impressed:

The modern arguments against gay marriage may be breathtakingly silly – but by mocking them, we ignore the profound harms that marriage bans inflict on gay people and their families. By placing these families at the center of his analysis, Posner restores the equal protection clause to its rightful place as the safeguard for all whom the state seeks to harm unjustly. His message for those who hope to demean gay people and their children is clear: Not on my watch.

Posner might say he was only being pragmatic, but in the Washington Post, Dale Carpenter finds that refreshing:

In short, the opinion is a tour-de-force Posner special. It avoids constitutional-law jargon in favor of substance, omits unnecessary string citations (indeed, whole pages are free of any citations), and eschews footnotes altogether. It doesn’t hurt the cause of same-sex marriage that, after Learned Hand, Posner is the most influential and prolific federal judge never to serve on the Supreme Court. He’s not always right, but he’s always formidable.

Ari Ezra Waldman adds this:

When we started on this journey, states were arguing that gay marriage would do manifest, irreparable damage to the institution of marriage. No one was ever sure what that meant, but even that argument has been sidelined to the trash. By now, the arguments make literally no sense.

Judge Posner, a lion of the appellate judiciary, has had enough. His playful opinion is his way of expressing frustration at the continued life of these anti-equality bromides.

Reuters chose the correct pull-quote:

A U.S. appeals court judge known for his outspoken views described arguments by Wisconsin and Indiana defending bans on gay marriage as “totally implausible” on Thursday, in a ruling in favor of same-sex couples.

That is what Posner said of Scalia’s mechanistic rules-based if-then Grand Theory of All Legal Questions two years ago. Sometimes you defer to the political process, as Greg Epps colorfully explains:

Competing with William Faulkner, Flannery O’Connor once wrote, is an inevitably losing proposition: “Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Federal District Judge Martin Feldman may feel like that luckless muleskinner today. His decision affirming a state ban on same-sex marriage appeared Wednesday. On Thursday, the Dixie Limited, in the person of Judge Richard Posner of the Seventh Circuit Court of Appeals, ran over him going the other way.

In an opinion for a unanimous three-judge panel, Posner upheld a district-court ruling that struck down same-sex marriage bans in Indiana and Wisconsin. The opinion is a Posnerian tour de force: clear, clever, thorough, witty, and – well – odd. It replies to most of the arguments Feldman accepted, including the most important one – the argument that the courts should defer to the political process in matters of social policy.

The guy had it coming:

At this point, we know all the arguments against marriage equality: Procreation. Tradition. Morality. Caution about social change. Democratic process. Feldman’s opinion had a kind of listless, get-off-my-lawn tone. You kids and your same-sex marriage, can just count me out, he seems to be saying. Procreation, slippery slope, democratic process, can I go now?

Posner’s tone is not fatigue but Five-Hour Energy. He does not rebut arguments against same-sex marriage, but rather (to paraphrase an old Southern threat) beats them to a pulp, puts the pulp into a sack, and then beats on the sack.

And he quotes Posner on that:

One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals.

Then Epps ticks off Posner’s take on the “big” issues:

Opposite-sex marriage is traditional? “Tradition per se has no positive or negative significance. There are good traditions … bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination – regardless of the age of the tradition.”

“Caution” in allowing social change? Stubbornness is prejudice, not caution: “At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage.”

“Protecting” traditional marriage? “What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage.”

The democratic process? “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Yeah, there is that, and two years after he covered the original Scalia-Posner spat, Eric Segall is again discussing it in terms of cases Posner will force up to Scalia, including this one:

The University of Notre Dame didn’t want to provide certain forms of required contraception to its students and employees so it went to court seeking a religious exemption. The bizarre thing about the case is Notre Dame was already exempt. What it wanted was not to fill out the form that would have guaranteed the university an exemption. Notre Dame claimed, to most people’s disbelief, that filling out the short form and asking for the exemption was itself a substantial burden on its religious exercise.

Posner would have none of it. At the oral argument, he took a harsh tone with the lawyer for Notre Dame who refused again and again to answer directly how filling out a piece of paper could possibly be a “substantial burden on religion…”

Eventually, Notre Dame lost (the court of appeals uses three-judge panels) and the final opinion written by Posner said this: “The novelty of Notre Dame’s claim – not for the exemption, which it has, but for the right to have it without having to ask for it – deserves emphasis … What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths … The process of claiming one’s exemption is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses.”

From the oral argument through the decision, Posner seemed shocked at the idea that Notre Dame would challenge an exemption given to it by the federal government on the basis that it – gasp – had to ask for it.

Posner knows an implausible argument when he sees one, and he’ll tear to shreds with simple logic and devastating clarity and more than a little wit, and dare the Supreme Court to take up his appellate-level decision rather than let it stand. Scalia will no doubt get nasty and rage a bit, and talk about what the framers specifically said about the morality of birth control by means of a pill mass-produced in central New Jersey containing low-dose artificial hormones, or what they had to say about gay marriage – but he’ll have to make it up. And no one has come up with that Constitutionality Computer yet, where you plug in the facts of the case and the decision is sent to your smartphone. He’s out of luck there.

These two are quite a pair, and it’s easy to see what that woman who had argued before each of them was getting at. It would be a pleasure to argue in front of Posner. It would be fun to be challenged and go back and forth on these things. It sure beats getting berated and sneered at. It’s good to have known someone who had both experiences. But how did that happen? Go figure.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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2 Responses to Identifying the Implausible

  1. Rick says:

    Re Judge Richard Posner:

    “Yes, he was a conservative, but he was and is a pragmatist. He seems to loathe Republicans in general, not that he cares for most Democrats. He likes to think for himself.”

    Odd, but I remember hearing, back in the days when Posner was involved in the Microsoft case, he was widely considered a libertarian and, although I may be wrong, even described himself that way. In fact, checking his Wikipedia page, I see these positions on various issues, most (but not all) with which I don’t agree:

    * Abortion: “Posner has written several opinions sympathetic to abortion rights, including a decision that held that ‘partial-birth abortion’ was constitutionally protected in some circumstances.”

    * Animal Rights: “He argues that animal rights conflict with the moral relevance of humanity and that empathy for pain and suffering of animals does not supersede advancing society.”

    * Antitrust: “Along with Robert Bork, Posner helped shape the antitrust policy changes of the 1970s through his idea that 1960s antitrust laws were in fact making prices higher for the consumer rather than lower, while he viewed lower prices as the essential end goal of any antitrust policy.”

    * Drugs: “Posner opposes the US ‘War on Drugs’ and called it ‘quixotic’. … In a talk at Elmhurst College in 2012, Posner said that ‘I don’t think that we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana.’ ”

    * Patent and Copyright Law: “Posner has expressed concerns … that both patent and copyright protection, though particularly the former, may be excessive … [and that] … When patent protection is too strongly in favour of the inventor, market efficiency is decreased.’ ”

    * Police Recording: “At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without consent even when filming public acts like arrests in public. Posner interrupted the ACLU after just 14 words, stating, ‘Yeah, I know. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police….’ Posner continued: ‘Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.’ The 7th Circuit upheld the challenge 2-1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.”

    *Privacy: “Posner thinks that privacy as a social good is overrated: ‘I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others.’ According to one author, Posner claims that ‘breaking down privacy domains and promoting transparency of the population is economically and morally beneficial. Paradoxically though, for Posner, wealth maximisation means that businesses should be afforded greater levels of privacy because placing businesses under the public spotlight harms economic growth.’ “

    As for his specific politics:

    “In Posner’s youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. … Today, although generally viewed as to the right in academia, Posner’s pragmatism, his qualified moral relativism and moral skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. As a judge, Posner’s rulings have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time.”

    But then, Posner adds this:

    “In July 2012, Posner stated, ‘I’ve become less conservative since the Republican Party started becoming goofy.’ “

    Okay, now on that point, we thoroughly concur.


  2. BabaO says:

    It is not difficult for me to imagine two more polar opposites that Scalia and Posner. Posner is a dyed-in-the-wool conservative. Scalia is an asshole and a bully who thinks of himself as a conservative. Posner is a rational and constructive force and Scalia is only an asshole and a bully.

    Posner reminds me of my maternal grandfather’s small town pharmacist’s conservatism, and Scalia has always put me in mind of a 1930’s mid-level Italian government bureaucrat – perhaps a former pig farmer given some authority in the new Roman empire of that time.

    I’ve been appalled by Scalia from the first I’d ever heard of him. Where did he acquire whatever judicial philosophy he might have, I wondered. And then one day I opened the morning paper and found that, quite unlike his usual press-shyness, he had allowed reporters to quote him from a speech he gave to a small group somewhere in the mid-west. His remarks included a very clear statement that the Constitution’s Bill of Rights is a grant of rights to citizens. How any responsible person – particularly a judge – can view the Bill of Rights as anything other than an 18th century affirmation that the people are protected against government overreach is beyond my understanding. However, it explains a lot about Scalia. Not only is he an asshole and a bully – he’s an ignoramus as well.

    The comparison of Posner and Learned Hand is quite apt, and one made by a law professor of my acquaintance many years ago. And the Posner quote about the republican party going “goofy” reminds me of a similar comment by a guest on the Late Show several years ago. After making a remark about the party that Jay Leno thought uncharacteristic of his guest’s political views, Leno said, “I thought you are a republican.” To which the guest replied, “I was until they went crazy.”

    Leaving aside partisan political beliefs, it is unfortunate that we have so few judges of Posner’s intelligence, ability and honesty.

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