Benchslaps, Richard Posner, SCOTUS, Supreme Court

Reverse Benchslap Of The Day: Judge Posner Smacks Chief Justice Roberts

Judge Posner does not have a high opinion of Chief Justice Roberts's dissent in the same-sex marriage case.

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Judge Anthony M. Kennedy’s opinion in Obergefell v. Hodges, which just brought marriage equality to the nation, does not once acknowledge any of the four dissents. This shouldn’t come as a shock; longtime Court watchers know that AMK is not one for grappling with dissenters.

Littering a majestic opinion for the Court with footnotes sniping at dissenters is like placing cheap plastic flamingos in an English garden: it’s not aesthetically appealing. And if you’re going to be the “first gay justice,” you need to care about aesthetics (and know how to throw shade; pretending that dissenters don’t exist is one great way of doing that).

The downside of Justice Kennedy’s (entirely sensible) “above the fray” approach is that we don’t get to see the snarky dissenters get a taste of their own medicine — or, for the more high-minded among you, we don’t get as robust a debate. But have no fear; Judge Richard Posner of the Seventh Circuit is here.

Even though Judge Posner, as a “mere” federal appeals court judge, sits below the U.S. Supreme Court on the judicial totem pole, he’s not afraid to sass his “superiors.” See, e.g, his repeated reverse benchslaps of Justice Scalia over the years.

Over the weekend, Judge Posner penned a piece for Slate about Obergefell that basically does to the dissenters what Justice Kennedy might have done had he deigned to engage them. But Justice Kennedy probably wouldn’t have been as scathing. From near the top of Posner’s piece:

Unless it can be shown that same-sex marriage harms people who are not gay (or who are gay but don’t want to marry), there is no compelling reason for state intervention, and specifically for banning same-sex marriage. The dissenters in Obergefell missed this rather obvious point.

And Judge Posner is just getting warmed up. From his next paragraph (emphasis added):

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[G]ratuitous interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits….

The substance of this analysis shouldn’t surprise us — recall his Seventh Circuit opinion on gay marriage, issued shortly after he sliced and diced defenders of “traditional” marriage at oral argument — but his dropping the “b” word, “bigotry,” is harsh. It’s just the type of thing that Justice Samuel Alito worried about in his dissent: “the marginalization of the many Americans who have traditional ideas” about marriage.

And now Judge Posner pulls out the knives:

The four dissents strike me as very weak, though I’ll discuss just two of them, beginning with the chief justice’s….

The chief justice criticizes the majority for “order[ing] the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs — we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.

I disagree with that last sentence. Judge Posner just cut the heart out of the Chief’s dissent while it was still alive.

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Speaking of heartlessness (emphasis added):

[T]he chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.

The super-cerebral Judge Posner, who rose to fame as a proponent of law and economics, is not exactly known for being a bleeding heart. If he calls you “heartless,” you might as well be the Tin Woodman.

In fairness to the dissenters, various responses can be made to Judge Posner. For example, over at the Volokh Conspiracy, Professor David Bernstein questions whether Posner’s Slate essay can be reconciled with Posner’s praise of Justice Holmes’s famous dissent in Lochner, a favorite opinion for advocates of judicial restraint. And Professor Jonathan Adler points out an apparent factual error in Posner’s piece.

So Judge Posner’s piece might not be perfect. But let’s at least thank him for debating the dissenters in the way that Justice Anthony “Talk to the Hand” Kennedy declined to do.

Supreme Court Breakfast Table: The chief justice’s dissent is heartless [Slate]
Judge Posner’s take on Holmes and Lochner, and Roberts and Obergefell [Volokh Conspiracy]
When a Judge criticizes a Justice [Volokh Conspiracy]

Earlier: Judge Posner’s Blistering Benchslaps At The Same-Sex Marriage Arguments
Benchslap of the Day: Justice Scalia Pulls Rank on Judge Posner
The Benchslap Dispatches: Posner v. Scalia — Is It Personal?
Posner Pwns Scalia

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