Richard A. Posner’s The Federal Judiciary—Part 1

by Ed Whelan

You sure shouldn’t judge a book by its cover. Seventh Circuit judge Richard A. Posner has just published another book—or, perhaps more accurately, another pretense of a book, with a grand title, stylish cover, and the imprimatur of Harvard University Press. But when you open it up, things quickly turn bad. Indeed, The Federal Judiciary: Strengths and Weaknesses may well be the worst-edited book that I have ever tried to wade through.

This, alas, is nothing new for Harvard University Press, which seems happy to serve as a vanity publisher for whatever mishmash of ideas Posner slops together. Nine years ago, in my broadly unfavorable review of Posner’s How Judges Think, I observed that the book was “at least one thorough redraft short of being ready for publication” and “reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence.”  Ditto, four years ago, for Posner’s Reflections on Judging. (Posner has in lots of other ways amply earned my low regard; here’s just one of many examples.)

This time, Posner gives a warning of sorts, as he states in his preface that the book “is more a macédoine than a treatise” and “contains a good deal of quoted material.” Macédoine, it turns out, is a fancy word for a confused mixture, a hodgepodge, a jumble, though I’m guessing that Posner intended a more favorable meaning (a mix of fruits or vegetables).

By “a good deal of quoted material,” Posner refers to his countless block quotes, many running for pages. He quotes the opinions in one of his cases for twenty pages, and another order of his for twelve pages. He includes the entirety of a favorable review of Reflections on Judging (3 pages); a journal’s explanation (crediting Posner) of its reasons for abandoning the Bluebook system of citation (2+ pages); his own written advice to his law clerks on citation (3-1/2 pages); repeated long excerpts from his buddy, law professor Eric Segall (too many to count, but I’d be surprised if fewer than ten pages); Jeffrey Toobin’s Scalia-bashing (2 pages); a long Slate exchange with Akhil Amar (5+ pages); a tendentious letter from an unnamed correspondent; and an “open letter” from liberal academics to Donald Trump (4+ pages). (I’ve made no effort to be exhaustive and have probably omitted some other glaring examples.)

Worse, when Posner’s not dumping copy-and-paste excerpts on the reader, he’s bouncing around from scattered thought to disjointed observation to tiresome repetition. “Moving on” and “Enough …” are feeble transitions that he resorts to on multiple occasions.

The book is also very poorly organized. You’d think that its three chapters on the three tiers of the federal judiciary would provide a sensible way for Posner to structure his thoughts. But he instead begins with a rambling 41-page introduction and then, in his first chapter, thrusts the reader into the minutiae of Round Five (or is it Round Four?) of a back-and-forth that he’s been having with a law professor on various topics. When he does finally turn to his first tier (the Supreme Court), he spends about six pages complaining about Justice Kagan’s praise for Justice Scalia and then fourteen pages on an “edited and somewhat amplified” version of transcribed remarks that he made off the top of his head at a conference. Posner then divides the rest of the 150+-page chapter into a Part One and a Part Two, but if there’s any sense to the division, I missed it. (Part Two begins: “I have at times drifted from the subject of this chapter, which is the Supreme Court, and let me return to it.”) After his chapter on the third tier (the district courts), he tosses in a chapter whose material, if worth including at all, could sensibly have been divided among the tiers. And his conclusion is followed by a 30-page epilogue that might as well have been titled “Some Other Things I’ve Just Thought Of”: far from being confined to new events, it includes his criticism of President Obama’s praise of Elena Kagan in 2010.

As I said four years ago of Reflections on Judging, Posner’s new book is too wildly undisciplined for me to attempt a comprehensive survey and critique of its arguments. But I will offer some further observations in follow-up posts.

This Day in Liberal Judicial Activism—July 20

by Ed Whelan

 1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.” Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

Scalia Speaks, Forthcoming Book of Scalia Speeches

by Ed Whelan

As I mentioned in late April, at the invitation of the Scalia family, Christopher J. Scalia (son of Justice and Mrs. Scalia) and I have been reviewing and selecting Justice Scalia’s best speeches for publication in a single-volume collection. I am very pleased to pass along that, as announced earlier today on the Corner, Crown Forum has arranged with the Scalia family to publish Scalia Speaks: Reflections on Law, Faith, and Life Well Lived. Even better, Scalia Speaks will be available very soon—on October 3, the Tuesday after the next Supreme Court term opens.

Scalia Speaks is designed for a general audience and is replete with Justice Scalia’s characteristic wisdom, clarity, and humor. There are a lot of great speeches on legal topics, all readily accessible to the non-lawyer. As the subtitle suggests, we’ve included many speeches on other topics: for example, faith, character, tradition, ethnicity, education, turkey hunting, and even the games and sports that a young Nino Scalia played on the streets of Queens in the 1940s. The book also features several of the Justice’s moving, and often funny, tributes to friends. Only a small handful of the dozens of speeches in the book have ever been published before.

My hopeful expectation is that a very broad swath of readers will find the book a delight—a joy to read and a great gift for family, friends, and colleagues. Here’s a take from one non-lawyer who reviewed the manuscript:

Skimming through the speeches is like being bathed in a world of goodness, truth, and beauty. The humor, generosity, friendship, and love that shines from them is a balm in what is too often an ugly world.

Justice Ruth Bader Ginsburg—dear friend to Justice and Mrs. Scalia and subject of one of the Justice’s tributes—has generously volunteered a wonderful foreword, and Chris Scalia has written a poignant introduction.

Pre-order the book now. You’ll be very glad you did.

This Day in Liberal Judicial Activism—July 19

by Ed Whelan

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.”

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction.

No, Chief Justice Roberts Did Not ‘Embrace’ Obergefell

by Ed Whelan

In yesterday’s Washington Post, Supreme Court reporter Robert Barnes posed what he called a “Supreme Court mystery”: “Has Chief Justice John G. Roberts Jr. embraced the court’s same-sex marriage decision that he so passionately protested two years ago?” But the clear answer to Barnes’s question is no.

To be sure, it is an open question whether the Chief Justice joined the recent per curiam opinion in Pavan v. Smith, which held that the Court’s 2015 decision in Obergefell v. Hodges justified summary reversal of a ruling by the Arkansas supreme court. But let’s assume that the Chief Justice did join the per curiam majority. All that such joinder would necessarily signal, as Barnes acknowledges only towards the end of his pseudo-mystery, is that Roberts thought that “Obergefell as precedent … covered the Arkansas case, whether he liked it or not.” It certainly wouldn’t signal that he now suddenly thought that it had been rightly decided, or that it shouldn’t be overruled, much less that he “embraced” it.

I’m reminded of Jeffrey Toobin’s bizarre suggestion a few years ago (see my point 2 here) that Justice Scalia’s joinder in Justice O’Connor’s unanimous opinion in Ayotte v. New Hampshire (2006) meant that he had “embrac[ed]” her undue-burden standard for abortion regulations.

Barnes also errs in asserting that the dissenters in Pavan said the court should have accepted the case for full briefing and argument because the outcome wasn’t nearly as clear-cut as the majority claimed.” (Emphasis added.) No. Justice Gorsuch’s dissent (which, in the face of an unhinged attack, I explained here) says only that summary reversal was improper. It does not address whether the Court should instead have granted or denied review.

This Day in Liberal Judicial Activism—July 18

by Ed Whelan

2014—In State v. Gleason, the Kansas supreme court rules by a 5-2 vote that the Eighth Amendment requires a capital-sentencing court to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt.

In January 2016, in the consolidated ruling styled Kansas v. Carr, the Supreme Court will reverse the Kansas ruling. In his opinion for eight justices, Justice Scalia “doubt[s] whether it is even possible to apply a standard of proof to the mitigating-factor determination” and explains that the Court’s case law does not require any such jury instruction. (Justice Sotomayor, in dissent, does not disagree on this point but instead opines that the Court should not have reviewed the Kansas ruling.)

This Day in Liberal Judicial Activism—July 17

by Ed Whelan

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

This Day in Liberal Judicial Activism—July 16

by Ed Whelan

2014—Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds.

This Day in Liberal Judicial Activism—July 15

by Ed Whelan

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

Four Judicial Nominees Clear Committee

by Jonathan H. Adler

Yesterday the Senate Judiciary Committee cleared four of President Trump’s judicial nominees. The committee approved Kevin Newsom for the Eleventh Circuit, 18-2, John Bush for the Sixth Circuit and Damien Schiff for the Court of Claims,, 11-9, and TimothyKelly for the U.S. District Court in D.C. by a voice vote. Progressive activist groups have been actively opposing Bush and Schiff, alleging that past statements made in blog postsor social media should disqualify them from the bench.

Meanwhile, yesterday President Trump also announced eleven additional judicial nominees, all for district courts. This continues the Administration’s effort to put forward a new batch of judicial nominees each month. Notably, however, the latest set of nominees does not include any appellate nominations, even though a significant number of appellate vacancies remain. As of this morning, there are 18 current and pending vacancies on federal circuit courts without nominees.

This Day in Liberal Judicial Activism—July 14

by Ed Whelan

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

This Day in Liberal Judicial Activism—July 13

by Ed Whelan

2006— In United States v. McCotry, federal district judge David F. Hamilton invokes “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances. One year later, a unanimous Seventh Circuit panel will reverse Hamilton’s ruling.

In March 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to an appellate seat.

This Day in Liberal Judicial Activism—July 12

by Ed Whelan

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

2016—Reversing the district court, a divided Tenth Circuit panel, with an Obama appointee in dissent, rules that Utah’s Planned Parenthood affiliate is entitled to a preliminary injunction preventing state agencies from discontinuing passing through federal funds to it. Utah governor Gary Herbert had directed state agencies to discontinue the funding in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts.

Judge Mary Beck Briscoe’s majority opinion reads much like a Planned Parenthood press release. It parrots the group’s deceptive claim that the videos were “selectively edited,” and refers euphemistically to “the health care provider’s fetal tissue donation program.” (Emphasis added.) Yeah, sure, in all its haggling over the prices of the body parts that its abortions—oops, “health care” services—generate, Planned Parenthood was just engaged in a “donation program.” Briscoe obscurely cites (“App.398”) a Huffington Post article as her support for these mischaracterizations.

Briscoe’s legal reasoning is even worse. She concludes that a jury “is more likely than not” to find that Herbert acted to “punish” the Planned Parenthood affiliate for exercising its constitutional rights (rather than for its supposed complicity in the conduct revealed by the videos). But this theory can’t account for why Herbert took no action against the entity during his first six years as governor and instead acted only after the videos were released. Nor does Briscoe accord the district court’s contrary assessment the deference it is owed under the “abuse of discretion” standard of review.

In October 2016, Tenth Circuit judge Neil M. Gorsuch and three colleagues will dissent from his court’s denial of rehearing en banc on the ground that Briscoe’s opinion departed from “this court’s previously uniform practice” on basic questions “concerning our standard of review and the burden of proof” on claims for preliminary injunctive relief.

This Day in Liberal Judicial Activism—July 12

by Ed Whelan

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

This Day in Liberal Judicial Activism—July 10

by Ed Whelan

2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling.

This Day in Liberal Judicial Activism—July 9

by Ed Whelan

1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.” 

This Day in Liberal Judicial Activism—July 7

by Ed Whelan

2014—President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause.

The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.
 

Posner’s ‘Common Sense’

by Ed Whelan

It’s quite an achievement to make federal district judge Jed Rakoff seem reasonable by comparison, but that’s exactly what Seventh Circuit judge Richard Posner manages to do in this Slate dialogue on whether federal judges should be subject to age limits.

Here’s how Posner supports his position that non-lawyers should be appointed to the Supreme Court:

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. [Emphasis added.]

Quoting Rakoff, Posner states:

I strongly disagree with the following: “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. . . .” I think most of what I’ve just quoted is flatly wrong. 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.” [Emphasis added.]

In case you’re wondering what Posner’s “common sense” generates, I’ll point you to some passages from the newest of his series of streams-of-consciousness-of-rambling-thoughts-masquerading-as-books, grandiosely titled The Federal Judiciary: Strengths and Weaknesses, to be published in August. (I have a galley version and hope to blog more extensively about the mess soon.)

Posner argues that Plessy v. Ferguson (1896), which held that racial segregation of public facilities did not violate the Constitution, “was ‘right’ for its time” because “[i]t is unlikely that the Southern states would have obeyed [a contrary] ruling, and beyond unlikely that the federal government would have attempted to use force to enforce the ruling.”

Ditto for Korematsu v. United States (1944), which upheld an executive order by FDR that forced Japanese-Americans into internment camps. Yeah, the executive order proved “to have been mistaken” about the risk of Japanese-American support for a Japanese invasion of the West Coast, and indeed “seems never to have had a convincing basis.” “But I imagine,” writes Posner, “that the motive behind the order was not fear of a Japanese invasion but a desire to demonstrate to the American people that the government would stop at nothing to defeat the enemy.” So if you’re “demonstrating . . . an absolute commitment to war and victory,” then common sense says you get a pass on forcing your fellow citizens into internment camps.

Posner also invokes common sense in defense of Justice Oliver Wendell Holmes’s notorious opinion in Buck v. Bell (1927), upholding a Virginia law authorizing the involuntary sterilization of supposedly “feeble-minded” individuals. Posner’s speaks approvingly of this most controversial passage of Holmes’s opinion, “in which Holmes combined enthusiasm for the Virginia law with a note of levity”:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.  

Posner evidently regards the last sentence as the “note of levity.” So what, as he points out, that neither Carrie Buck nor her mother nor her child “were mental defectives,” for “this could not have been known by Holmes.” Posner admires Holmes as someone who “acknowledges and accepts the role of emotion in judicial decision making,” and he praises Holmes’s opinion in Buck v. Bell as “a striking illustration of a persistent judicial tendency to base decisions on personal experiences and values, as well as—or in place of—conventional legal reasoning.” (He does note that the eugenics movement for which Holmes had enthusiasm “was later discredited.”)

So there you have it: on how judges should decide cases, a stark choice between Posner’s purported “common sense” and the “antiquated crap” of “conventional legal reasoning.” (By the way, I’m open to serious arguments in support of these and other unpopular decisions, but any such arguments should rest on law, not on a judge’s own perception of common sense.)

This Day in Liberal Judicial Activism—July 6

by Ed Whelan

1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.

But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.

This Day in Liberal Judicial Activism—July 5

by Ed Whelan

1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)