Judge Posner Defends His Benchslap Of Chief Justice Roberts
Judge Posner's harsh critique of the Supreme Court raised eyebrows; what does His Honor have to say for himself?
When Judge Richard Posner penned a rather harsh critique of the dissents in Obergefell v. Hodges, the Supreme Court ruling that basically legalized same-sex marriage nationwide, some observers had a negative reaction (e.g., Judge Richard G. Kopf). Despite Judge Posner’s status as a member of an “inferior” court (even if Posner himself might quarrel with that term), he pulled no punches. He declared the four dissents “very weak” and called Chief Justice Roberts’s dissent “heartless,” before proceeding to snark on the Chief’s dissent as only Posner can.
Is Judge Posner worried about how his commentary might be received at SCOTUS? Not particularly, according to an interview he gave to Law360 (sub. req.):
“I think lower court judges are particularly hesitant to criticize the Supreme Court because the notion is they are our bosses and they might take revenge on us,” Judge Posner told Law360. “I don’t think that’s true, and I don’t think they’re that petty. Put another way, I don’t think they’re concerned with us, the little people.”
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If Judge Posner is one of “the little people,” then the rest of us are positively Lilliputian. But he makes a good point: the justices generally don’t pay much attention to criticism of their work coming from beyond One First Street, and sometimes seem to take pains in interviews to talk about their limited media consumption.
As for his not putting much stock in hierarchy or status, Judge Posner takes the same approach to himself. By default, I address him deferentially as “Judge Posner” whenever we correspond or meet in person, and he repeatedly admonishes me to call him “Dick.”
Some lawyers who appear before him call him just that — and not necessarily to his face. Judge Posner admits he can be a tough customer at oral argument:
“I guess I am outspoken,” Judge Posner said. “Most judges are a little more cautious. … I do think I’m a little brutal to lawyers. Not all of them, but when the lawyers seem to be fencing with us, exaggerating or making things up, then I tend to get annoyed — maybe more visibly annoyed that some of my colleagues, who are more polite. I try to curb that, but occasionally I do get irritable.”
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And he concedes that sometimes he crosses the line. Remember the time he put a picture of an ostrich with its head in the sand in an opinion, when complaining about how one of the lawyers was refusing to acknowledge adverse precedent? He regrets it:
Judge Posner offers a mea culpa for the ostrich incident, which was humor taken too far, he says. “The lawyer was upset and wrote a letter saying it wasn’t a nice thing for me to do, which I admitted,” he said. “I’m not going to do that again. But I don’t think I do it very often.”
Back to Judge Posner’s criticism in Slate of the Obergefell dissents. What should we make of it? Lawyer Sarah Marmor, who has appeared before Judge Posner, praised it to Law360 as “a brilliant takedown.” But Chicago civil rights attorney Thomas Durkin noted that defenders of decorum would frown upon Posner’s piece and argue for greater deference to the high court.
Durkin has, by the way, had some fun run-ins with Judge Posner. From Law360:
Durkin, trying to get a word in [during an oral argument], said: “If you’d let me finish, and I don’t mean that respectfully …”
“I’m glad you don’t mean it respectfully, at least you’re being candid,” Judge Posner said.
“I said I meant it respectfully. Did I say I didn’t mean it respectfully?” Durkin asked.
“That’s known as a Freudian slip, that’s where a person reveals what he really thinks, and that’s fine,” Judge Posner said.
“You may be right about that,” Durkin responded.
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Readers, what do you think of Judge Posner’s benchslap of SCOTUS? Take our reader poll below.
(Disclosure: I consider Judge Posner a friend, and he blurbed my book, Supreme Ambitions (affiliate link) — which I was honored by, because he’s the kind of person who would tell you that your book sucks if it sucks. Also, he and I will be speaking together on a panel at this year’s ABA Annual Meeting. Hope to see you there!)
Was Judge Posner's criticism of the Supreme Court dissenters in Obergefell appropriate?
Loading ...Posner Defends ‘Outspoken’ Rep After Criticizing High Court [Law360 (sub. req.]
In this instance, Judge Posner lied [Hercules and the Umpire]
The Law As A Platform For Writing [2015 ABA Annual Meeting]
Earlier: Reverse Benchslap Of The Day: Judge Posner Smacks Chief Justice Roberts
