Federal Judges, Old People, Richard Posner, SCOTUS, Supreme Court

Judge Richard Posner Rips On SCOTUS, Oldsters -- And No, He's Not A Troll

Judge Posner believes there's "no need for octogenarians" on the Supreme Court.

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Judge Richard Posner: ‘You wanna piece of me?’ (Photo by Chensiyuan via Wikimedia Commons.)

Many liberals breathed a sigh of relief when Justice Anthony M. Kennedy did not retire from the U.S. Supreme Court last month. And they’re hoping that he doesn’t retire at any point during the Trump administration, fearing how replacing Justice Kennedy with a conservative like Justice Neil M. Gorsuch could affect everything from abortion to affirmative action to marriage equality. AMK hasn’t been a liberal’s dream on SCOTUS, but the left knows full well that he’s a heck of a lot better than whoever President Trump would pick as his successor.

But Justice Kennedy is 80 years old, turning 81 on July 23, and it’s no secret that he’s considering retirement. Last week, Carl Reiner, the 95-year-old writer and director, wrote an open letter to AMK:

As someone who has almost a decade and a half on you, I can tell you this: It may well be that the best part of your career has just begun. As a nonagenarian who has just completed the most prolific, productive five years of my life, I feel it incumbent upon me to urge a hearty octogenarian such as yourself not to put your feet up on the ottoman just yet. You have important and fulfilling work ahead of you.

You know who would vigorously dissent from that opinion? Judge Richard Posner, the longtime Seventh Circuit judge, distinguished author and academic, and all-around public intellectual.

In a recent conversation with Judge Jed S. Rakoff (S.D.N.Y.), moderated by lawyer and author Joel Cohen (check out Cohen’s new book, Broken Scales: Reflections on Injustice (affiliate link)), Judge Posner argued in favor of a mandatory retirement for federal judges at age 80. Judge Rakoff disagreed, arguing that life tenure protects judicial independence, and noting that several Supreme Court justices did superb work in their twilight years:

The list of federal judges who have served with great distinction into their 80s includes, among many others, some of the greatest Supreme Court justices ever, such as Louis Brandeis (82), William J. Brennan Jr. (84), Hugo Black (85), and Oliver Wendell Holmes Jr. (90)….

And… the number of Supreme Court justices (as well as lower court federal judges) whose views have evolved as they got older and served longer is very large and includes, just in the past few decades, such influential justices as Harry Blackmun, John Paul Stevens, and David Souter.

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Judge Posner couldn’t sit quietly while Judge Rakoff dropped those names (emphases added — in fact, all emphases appearing in any blockquotes in this post have been supplied by me):

If I may tune in, briefly, Blackmun, Stevens, and Souter were not giants. Nor was Brennan, although he was both able and influential, as indeed was Stevens—until he wrote a ridiculous opinion in Clinton v. Jones. Anyone think there’s a giant or giantess on the Supreme Court today?

….

There are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians.

Ouch. Keep in mind that in addition to Justice Kennedy, who’s about to turn 81, Justice Ruth Bader Ginsburg is 84, and Justice Stephen G. Breyer is 78.

And then combine this with the controversial comments Posner made last year about the members of the high court:

I think the Supreme Court is awful. I think it’s reached a real nadir. Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great.

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So if only RBG and SGB are (marginally) qualified for SCOTUS, and octogenarians shouldn’t even be on the Court, that leaves the current Court where, exactly? A court of one member, Justice Breyer, who will step down in August 2018 upon turning 80?

And then, because those opinions weren’t incendiary enough, Judge Posner added more shredded pages of F.3d to the flames:

I don’t think Article III’s reference to federal judges serving “during good Behaviour” need be equated to life tenure. It may be read just to mean they can be fired at any age for bad performance. Thus interpreted, the Constitution (which is plastic) does not confer life tenure on federal judges.

Also, while many judges and justices have performed OK in old age, I don’t think any of them improved with age, which means they could readily have been replaced with equally good or better judges….

Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.

Justice Peter Thiel, anyone? And who cares that Thiel hasn’t opened The Bluebook since his clerkship for Judge Edmondson on the Eleventh Circuit — that stuff is all “antiquated crap”! (And don’t even get Judge Posner started on The Bluebook….)

This next part of the Slate dialogue is pretty funny if you’re an Article III Groupie like me. If you’re familiar with Judge Rakoff, you know that he’s hilarious — an active participant in the S.D.N.Y.’s “Courthouse Follies,” for which he composes witty lyrics and sometimes even dons a wig. He’s used to being “the funny guy” in any given gathering. If you’ve ever seen him jointly officiate a wedding with Chief Judge Robert Katzmann of the Second Circuit, his good friend and clerk hiring partner, you know that Judge Katzmann plays “straight man” to Judge Rakoff’s cutup.

But in this situation, Judge Posner has traveled so deeply into “crazy uncle at Thanksgiving” territory that poor Judge Rakoff must play straight man to him:

Jeepers, I’m a little taken aback by Judge Posner’s salvo. To begin with, I think Article III has always been read as conferring life tenure on federal judges—and, as I pointed out at the start of this exchange, it is a very good thing, for it guarantees the judicial independence that most judiciaries in the world lack.

Second, I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees….

Third, I doubt very much that a person who, however brilliant, was not a lawyer would make a good Supreme Court justice, any more than an engineer, however brilliant, would make a good surgeon. From the day they enter law school, lawyers not only learn the legal methods and processes that are necessary to the proper practice and interpretation of law but also learn some very important lessons that are too little taught elsewhere: that there is something to be said for each side of most issues; that careful distinctions therefore matter; that a decision that cannot be supported by reason is essentially lawless; that in the long run the fairness of procedures is as important as the substantive results; that being a good judge is not a popularity contest; and that protecting the rule of law requires eternal vigilance.

Oh my goodness. Having to earnestly defend not putting non-lawyers on the Supreme Court? Judge Posner has placed Judge Rakoff in a pretty amazing position.

And wait, it gets better. After quoting from Judge Rakoff’s soaring defense of the rule of law above, Judge Posner states:

It’s not true that there’s something to be said for each side of most issues; that a decision must be supported by “reason,” whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to “reason.”

Wow, breathtaking stuff — but maybe not totally shocking, considering that we’re talking about Posner. Recall his similarly remarkable, renegade opinion in Hively v. Ivy Tech (which Mike Sacks perfectly summarized as “Posner, J., concurring and DGAFing”).

Judge Rakoff closes his comments by dutifully defending the oh-so-controversial position that judges should use reason in their decisions. This is absolutely hilarious when you stop and think about it (and should totally resonate for anyone who has read Professor Jay Wexler’s delightful satirical novel, Tuttle in the Balance (affiliate link), about a Supreme Court justice experiencing a midlife crisis).

Part of me wants to say this to Judge Rakoff:

https://www.youtube.com/watch?v=__byeIqZzPs

But, upon further reflection, that’s not correct. Judge Posner truly believes what he’s saying, and the fact that he might articulate his views in provocative ways isn’t sufficient by itself to make him a “troll.”

More fundamentally, the label “troll” diminishes the brilliance of what Judge Posner is doing.

My unified theory of Judge Posner: he has taken advantage of life tenure, as well as the reputation for brilliance that he painstakingly developed over the course of decades, to become one of the most remarkable performance artists in modern history.

After Posner passes away, we will find in his papers an artist’s manifesto, identifying when his performance began, the theoretical underpinnings of his work as an artist, and the specific “episodes” or “installations” through which he expressed his artistic vision — an argument for the indeterminacy of law and ultimately language. Works might include exchanges like the one just now with Judge Rakoff; written output, like the time he called Chief Justice Roberts “heartless” in a Slate column; and spoken-word performances, such as his brutal takedowns of hapless advocates in oral arguments.

Some might condemn Judge Posner for turning a judicial chambers into an artist’s studio, but I don’t have a problem with it. Keep in mind that he has still managed to do the work of a federal appellate judge in the course of making his art. For decades, he has cast votes, written opinions, and resolved cases, just like his Seventh Circuit colleagues.

Remember also that circuit judges sit in panels of three and spend most of their time affirming or reversing — who are we kidding, affirming — the district courts. One would be hard-pressed to find a situation where someone was seriously prejudiced by the Posnerian performance. Sure, his critics might say Posner is a “bad judge” — but as we all know, there are lots of bad judges out there. So I can’t see any real harm, to the American taxpayer or the Republic, in Judge Posner serving as the Article III analogue to Marina Abramović.

How much longer can the show go on? Writing in the ABA Journal, Debra Cassens Weiss subtly calls out Posner on his “mandatory retirement at 80” position:

Judge Richard Posner is 78 years old, according to Wikipedia, a source he has cited in his own opinions for the Chicago-based 7th U.S. Circuit Court of Appeals.

In a couple of years, Posner’s judicial career would be over if the position he takes in a Slate article were to come to fruition.

I decided to give Judge Posner a chance to respond. I reached out to him and asked whether he plans to step down from the bench upon turning 80. His response:

It will depend on how I feel then, both in terms of physical and particularly mental health and in terms of interest in the job.

Fair enough. It’s fine to argue in theory for a retirement age of 80, but then to remain on the bench beyond 80 if your proposal doesn’t get implemented and lots of your colleagues over that age aren’t leaving. If some of your octogenarian colleagues are doddering and you are not, then you might as well stick around to serve as a check on their decrepitude.

If you’ve had the pleasure of meeting Judge Posner in person, you know that he insists upon being called by his first name — or actually a nickname derived from his first name, “Dick.” Whenever we get together, I start off addressing him as “Judge Posner,” and he admonishes me to call him “Dick.” (He does this with all his friends, and also his law clerks — as he explains in Reflections on Judging, being on a first-name basis with him helps clerks give him candid advice.)

But the next time I see Richard Posner in person, I think I will address him as “Dick.” You see, Posner is not a “judge,” at least not in any conventional sense; he is something far more interesting and important.

“Dick” is an artist, a genius, a mono-monikered visionary — no different really from “Banksy,” “Beyoncé,” or “Bjork.” For my part, I wish “Dick” many more years on the federal judicial stage.

And if he shows up on the bench in a swan dress, don’t say I didn’t warn you.

UPDATE (7/11/2017, 8:25 a.m.): Alas, don’t expect to see Dick in a swan dress anytime soon. I shared this story with him, and he responded as follows:

David, thank you very much; I am so pleased to be classified as a mono-monikered visionary. However, I’m not sure about the swan dress, never having worn a dress or even met a swan. I might do better in a vulture dress.

A vulture indeed, picking at the carrion of unprepared oral advocates or vanquished intellectual opponents!

Should There Be Age Limits for Federal Judges? [Slate]
‘No need for octogenarians’ on the bench, Posner says [ABA Journal]
Justice Kennedy, Don’t Retire [New York Times]
Marriage Equality May Soon Be in Peril [Slate]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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