Antonin Scalia, Benchslaps, Federal Judges, Feeder Judges, Immigration, Politics, Richard Posner, SCOTUS, Supreme Court

Benchslap of the Day: Justice Scalia Pulls Rank on Judge Posner

Scalia to Posner: You're not the boss of me!

Over the years, Judge Richard Posner (7th Cir.) has sent a number of his clerks to the chambers of Justice Antonin Scalia. Query whether Judge Posner’s record as a feeder judge to Justice Scalia will be impaired by the recent sniping between them (or by Judge Posner’s ideological drift; as he recently told NPR, he has grown less conservative “since the Republican Party started becoming goofy”).

Last month, Judge Posner expressed misgivings over Justice Scalia’s impassioned dissent in Arizona v. United States, a high-profile case about immigration. Judge Posner questioned the “famously outspoken” justice’s decision to include complaints about illegal immigrants in his dissent, suggesting that such discussion might be more appropriate for a campaign ad than a judicial opinion.

In a recent interview, Justice Scalia benchslapped back — hard. What did he have to say?

Here’s what Justice Scalia said in an interview with Fox News Sunday, according to Bloomberg News:

“He’s a court of appeals judge, isn’t he?” Scalia, 76, said of Posner. “He doesn’t sit in judgment of my opinions as far as I’m concerned.”

The best part of this quotation, of course, is the “isn’t he?” Just stop and think about that for a moment.

Justice Scalia and Judge Posner taught together at the University of Chicago Law School. Justice Scalia has hired at least four clerks of Judge Posner’s. Judge Posner is one of the leading lights of the federal judiciary, as well as a major public intellectual — one of the most brilliant minds, legal or otherwise, in this great nation. Of course Justice Scalia knows who Judge Posner is. But with that delicious “isn’t he,” feigning confusion about or ignorance of who Judge Posner is, Justice Scalia pulls Supreme rank, relegating the eminent Richard Posner to the non-SCOTUS cesspool inhabited by, say, district judges from Montana. Or icky state court judges.

That’s not the only notable quotable from the lips of Justice Scalia in recent days. The justice, who’s promoting his new book, Reading Law (affiliate link), has been giving a slew of media interviews — to Fox News, CSPAN, and CNN, among other outlets. The ABA Journal has more nuggets from Nino:

“I’m not cantankerous,” Scalia told Fox News Sunday. “I express myself vividly.” The Wall Street Journal’s Washington Wire blog has the story. Asked if he goes out of his way to “push people’s buttons,” Scalia replied, “It’s fun to push buttons.”

Here at Above the Law, we could not agree more. Sometimes you need to push buttons to push traffic.

Things at the Supreme Court would be so much more boring without Justice Scalia’s button pushing. Thankfully, at least for those of us who consider ourselves Scalia groupies, Justice Scalia shows no signs of going anywhere. From Thomson Reuters News & Insight:

The 76-year-old Scalia – a leading conservative on the court who has served as a justice since 1986 – also was asked whether he would time his retirement in order to let a conservative future president appoint a like-minded jurist.

“I don’t know. I haven’t decided when to retire,” Scalia told the “Fox News Sunday” program. “… My wife doesn’t want me hanging around the house – I know that.”

“Of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I mean, I shouldn’t have to tell you that. Unless you think I’m a fool.”

Say what you like about Justice Scalia, but don’t call him a fool. He’s a great legal mind and an unmatched legal writer. May he push buttons and express himself vividly at One First Street for many years to come.

P.S. In case you’re wondering, the Posner/Scalia clerks are as follows: Professor Larry Lessig of Harvard Law, Aaron Van Oort of Faegre Baker Daniels, Professor Edward Morrison of U. Chicago, and Professor Scott Hemphill of Columbia Law.

Scalia Rebuffs Criticism of Dissent in Immigration Case [Bloomberg Businessweek via ABA Journal]
Justice Scalia: ‘I’m Not Cantankerous’ [Washington Wire / Wall Street Journal]
U.S. Justice Scalia steps up criticism of healthcare ruling [Thomson Reuters News & Insight]
Scalia Defends ‘Citizens United,’ Arizona Immigration Decision [The BLT: The Blog of Legal Times]
Me? Cantankerous? Scalia Says It Isn’t True, Needles Posner in Defense of Immigration Dissent
[ABA Journal]
Federal Judge Richard Posner: The GOP Has Made Me Less Conservative [NPR]
Reading Law [Amazon (affiliate link)]

Earlier: Posner Pwns Scalia

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