Political Animal


June 27, 2012 4:45 PM Posner On the Politicized Supremes

By Ed Kilgore

If you are sick of judicial speculation, and ready to move on to whatever fresh hell the High Court might or might not have in store for us tomorrow, make an exception to your eschewal of judge-talk to read Richard Posner’s remarkable analysis for Slate of Antonin Scalia’s outburst on immigration the other day.

Posner, as you may know, is generally regarded even by people who disagree with him often as one of America’s great legal thinkers. I remember my Property professor in law school way back in the late 1970s practically burning incense before the economic-analysis-of-the-law tomes Posner wrote in his pre-judicial days at the University of Chicago. He was appointed to the 7th Circuit Court of Appeals by none other than Ronald Reagan shortly thereafter, and has been there ever since, where he has usually enlightened and sometimes maddened just about everybody with his frequent public writings.

So it’s of more than passing interest that Posner so effortlessly shreds Justice Scalia’s impassioned tirade about the horrible burdens the Obama administration and the Court’s own majority is willing to place on Arizona in its decision on S.B. 1070 earlier this week:

In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

Posner goes on in this calm vein at some length, batting down every right-wing smear aimed at the moral character and fiscal impact of undocumented immigrants. But I was most impressed by his observation at the very beginning of his piece about the broader significance of Scalia’s outburst, and others like it:

Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be? Good or bad, it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities, such as presiding at mock trials of fictional and historical figures (was Hamlet temporarily insane when he killed Polonius? Should George Custer be posthumously court-martialed for blowing the Battle of the Little Big Horn?). My own view, expressed much better by professor Lawrence Douglas of Amherst, is that such activities give a mistaken impression of what trials are good for. But I would give Justice Sotomayor a pass for appearing on Sesame Street to adjudicate a dispute between two stuffed animals.

The general, cynical assumption of many “sophisticated” lay people is that judges have always been political whores who do what their constituencies—or the pols that appointed them—want. I’d say that’s been true at some points in American history, and calumny in others. Posner himself is a pretty good living testimony to the ability of a jurist to transcend politics and make everyone angry (e.g., myself, most recently in his earlier Slate piece on the juvenile life-without-parole decision) from time to time. But he is not exactly inspiring confidence that the Supremes are going to rise to the non-political occasion tomorrow morning at 10:00 EDT.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • c u n d gulag on June 27, 2012 5:02 PM:

    Oh, if only Posner could take Scalia behind the woodshed, and spank his fat ass!

    "Antonin, I'm doing this for your own good! Now, pull your pants down while I look for a splintery 2x4 to spank you with!"

    More, please!!!

  • Mimikatz on June 27, 2012 5:21 PM:

    OTOH, since Scalia has probably known for days if not weeks how the ACA case would come out, his increasing pissiness could mean he is on the losing side. Roberts is a corporate shill, but he did not associate himself with Scalia's remarks in the AZ case and I doubt he would join in similar caustic remarks chastising those who have the temerity to get sick without having obtained insurance, or those in Congress who tried to do something about the uninsured in the ACA case. Until tomorrow makes it clear, I will hold onto a slim hope for a 6-3 narrow upholding of the law or all of it but the mandate, or even some sort of punt that they can't invalidate until the penalties actually kick in.

    I just can't believe they would throw out everything including the Medicaid extension. If they do, I truly believe Congress will relieve hospitals of the obligation to treat the uninsured and we will continue our slide to third world status.

  • Rudy Gonzales on June 27, 2012 5:46 PM:

    The fact that Justice Scalia opens his mouth and expounds on his obvious partisanship views on immigration and other issues, I worry that the High Court is more partisan than it should be.

  • howard on June 27, 2012 6:22 PM:

    actually, the left should be rallying around the notion of impeaching scalia.

    the kind of thing that posner references here - citing stuff that he heard on right-wing talk radio just as if it had been introduced into evidence as to the matter at hand - is becoming increasingly common for scalia, which by itself is a high crime and misdemeanor for a federal judge.

    and that's before we get to scalia's approach to stare decisis, which is that there is no such thing as a settled matter if he personally didn't agree with the reasoning, a second high crime and misdemeanor for a federal judge.

    (and then we have the regular problem of scalia inserting himself into the political dialogue, most memorably, of course, when he told us to get over the fact that the supreme court stole the 2000 election from al gore and gave it to george bush.)

    when i was a child, everyone knew that the right wanted earl warren impeached (and william o. douglas impeached and beheaded); i have no problem with everyone knowing the left thinks that scalia should be impeached.

  • ComradeAnon on June 27, 2012 6:42 PM:

    Does anyone have any doubts that Scalia is a Fox watcher?

  • Doug on June 27, 2012 7:07 PM:

    An excelent post! I would take exception to the idea that there have been times when "some" judges have been partisan whores and other times when none have been so.
    Perhaps it was merely badly phrased, but I tend to think that there has never been a time when ALL judges were, or were perceived to be, such.
    MOST judges, okay...

  • Red Ruffensore on June 27, 2012 7:13 PM:

    The umps are calling this game as if they have a vested interest in the outcome. Must be my imagination.

  • Patrick Star on June 27, 2012 9:24 PM:

    I think the UCLA law professor put it best (can't recall his name) when he said that Scalia has officially jumped the shark. Should be interesting to hear what the cranky old coot has to say for an encore tomorrow (he's probably practicing in front of a mirror now, eager to regale us with his wisdom and charm).

  • Thymezone on June 28, 2012 8:31 AM:

    Posner either gets this part wrong, or overlooks it: Scalia's rants in the Arizona decision have no particular effect on the court or the decision. He's sort of crazy, but he's outnumbered. So, I don't see the big deal. Besides, I think Thomas is the scariest human being in Washington, D.C. by far. I think he is a potential mass murderer, but that's just my opinion.

  • boatboy_srq on June 28, 2012 9:24 AM:

    While Scalia no longer seems fit to preside impartially over traffic court, let alone sit on SCOTUS, he's not on the top of my Supes list.

    That would be Thomas.

    Scalia, for all his wingnut tendencies, at least telegraphs how he intends to decide. We may not like the decision but we at least know what it is. Thomas, to my recollection hasn't said anything - even in hearings - since refuting Anita Hill's accusations. We have a fairly good idea how he will decide from court watchers and previous decisions, but we can't be sure. That, to me, makes him a more dangerous Supe: it's easier to refute someone whose position is clear and oft-stated than someone who says nothing until the decision is handed down, and even then limits what s/he says to the text of the decision (or related dissent).

  • majun on June 28, 2012 9:35 AM:

    Oddly enough Posner's immigration jurisprudence is among the most liberal and enlightened out there. On a good day he can even out-liberal the 9th circuit. I live for 7th Circuit decisions on asylum and my heart soars when I see Posner's name as author.

    I am convinced that it was his immigration decisions that finally scotched his nomination for the Supremes. Bush's DOJ eviscerated the Board of Immigration Appeals, eliminating at least one panel and purging the BIA of its most liberal members. The quality of their decisions suffered badly and Posner, never one to suffer fools badly, raked the EOIR in general, and the BIA specifically, over the coals in decision after decision. Many IJs and board members took it personally.

  • DisgustedWithItAll on June 28, 2012 9:45 AM:

    The reason it's taken this decision so long to come out is those who are willing to ignore the obvious contradiction to precedent and common sense are rationalizing to a disgustingly trivial but transparent degree, and those who will dissent are going to excoriate the Scalia-lead Neanderthals. This is going to be brutal.

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