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Posner's War on the Supreme Court Continues

By Casey C. Sullivan, Esq. on December 05, 2016 10:59 AM

Richard Posner, the celebrated Seventh Circuit judge, has a bone to pick with the Supreme Court. This summer, he raised many hackles by declaring that the Court was "at a nadir," with no "real stars" on the bench since Justice Robert Jackson died in 1954. Just this October, Judge Posner argued, once again, that the Court "is awful," saying that only Justices Ginsburg and Breyer were good enough to sit on the Supreme Court.

Now Posner is back at it, firing another broadside against the Court. In a recently released video, Judge Posner described the Court as "a mediocre institution if ever there was one." He argued that Chief Justice Roberts was a "terrible manager" of the federal court system and criticized the Chief Justice's "stupid" decisions, along with the "terrible opinions" of the late Justice Antonin Scalia.

"Beating Up on Roberts"

Judge Posner's recently revealed comments were made in a "First Amendment Salon" held this past May, video of which was published just last Monday. During the salon, which covered everything from constitutional theory to the bombing of Berlin to Posner's communist parents, Posner exercised his own First Amendment right to lay into the Supreme Court.

The salon started with a discussion of Posner's First Amendment views, but soon veered off to criticism of the Supreme Court generally, and Chief Justice Roberts and Justice Scalia in particular. Posner, who at one point acknowledged that he was "beating up on Roberts," criticized the Chief Justice for his management of the judiciary, saying that there was inadequate training for new judges. He further condemned the Court for taking five years to publish its opinions in the United States Reports.

The Supreme Court's Stupid Decisions

Posner also took aim at several Supreme Court opinions that didn't live up to his standards. He described Roberts' 2014 decision in McCullen v. Coakley, striking down protest buffer zones around abortion clinics, as "such a stupid decision," and the protestors it involved as "shrieking fetus protectors."

Chief Justice Roberts was guilty of "maybe the two stupidest things ever out of the mouth of the Supreme Court," the idea that Supreme Court justices were like impartial umpires or referees, (umpires don't decide who wins, Judge Posner said, while judges do) and Justice Roberts' dissent Obergefell v. Hodges. It was "ridiculous," according to Posner, to rely on the sexual practices of other civilizations, from the Kalahari bushmen to the Carthaginians, to oppose equal marriage rights -- particularly when the history regarding those societies is unclear or contradictory.

As for Justice Scalia, Posner emphasized once again that he was no fan. Justice Scalia, for example, was "very proud" of the Court's decision in Texas v. Johnson, striking down flag-burning bans. Justice Scalia, though "styled himself as an originalist," and there was no reason to believe that Americans at the founding of the Republic would have viewed flag burning as expression. One of Justice Scalia's most important opinions, D.C. v. Heller, was similarly ill-informed, Judge Posner said, or as he put it "full of historical rubbish."

Internment, School Prayer, and More

Those weren't the only remarkable views Judge Posner expressed during the salon. The discussion is worth watching in full above, but here are some further highlights.

Posner called out the landmark 1962 decision banning official school prayers, Engel v. Vitale, saying that it was "really stupid," since "school prayer means nothing."

When it came to Citizens United, Judge Posner said that new Republican members of Congress are told to devote five hours a day to fundraising, which necessarily entails a "quid pro quo" with donors.

Judge Posner doesn't "get" protections for commercial speech, wondering "Why is commercial speech different from any other commercial activity? It doesn't have anything to do with democracy."

Students, including students at public universities, don't have First Amendment rights, in the judge's view.

Judge Posner would be fine with a law banning the display of the Confederate flag, he said, explaining that the U.S. government went too soft on the South after the Civil War. As a result, the South "still thinks that it's a separate country, that it's slavocracy deserves commemoration in Confederate flags displayed all over the place. I regard that as totally intolerable," he said.

Discussing wartime powers, Judge Posner expressed support for Japanese internment, saying that "what Roosevelt did was right," and the British bombing of civilians in World War II, as necessary for morale. A similar response to terrorism today, however, wouldn't be appropriate, Posner said, though "if there are more San Bernadinos, there will come a point at which the country will be ready to deport its entire Muslim population."

When asked if the Court should prevent the country from, as Posner described it, reacting "ferociously" to a threat, he explained that "traditionally, the courts do not interfere with war measures." He later declared, "I really like the idea of the executive defying the courts."

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