• Richard Posner for the Supreme Court?

    Judge Posner of the 7th Circuit Court of Appeals is the greatest living judge not on the Supreme Court. Generally considered a conservative, he isn’t afraid to attack error no matter the provenance. Take, for example, his recent review of a book by Justice Scalia and Bryan Garner. Posner eviscerates this book and its authors.  I agree with Brian Leiter, who says it would “finish the career” of any garden-variety academic author who wasn’t a Supreme Court Justice with life tenure. A sample, almost calling them out for academic fraud:

    How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?

    Posner’s review is titled The Incoherence of Antonin Scalia.  It appeared in The New Republic.  Judge Posner concludes:

    Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.

    What is going on here? Taking Judge Posner at face value, he is a conservative who is deeply troubled by the duplicity in Justice Scalia’s writings. The Court would be a dramatically different place if Posner had served there the last twenty six years.


    • When did Lawrence Tribe die?

    • Thanks so much for bringing this to our attention. Having read a number of Justice Scalia’s opinions I too am left wondering if his understanding of words and concepts is at all similar to that which the educated person understands. Originalism and ideology are not different notions for Justice Scalia; they should be.