August 18, 2008

Judge Richard A. Posner on the D.C. guns case (Heller): "In Defense of Looseness."

A nice long article in The New Republic. I'll excerpt a little (but read the whole thing):
The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn. Another plausible example of payback is the conservative justices' expansive interpretation of the free-speech clause of the First Amendment to limit regulation of campaign financing....

Constitutional interpretations that relax rather than tighten the Constitution's grip on the legislative and executive branches of government are especially welcome when there are regional or local differences in relevant conditions or in public opinion. The failure to recognize this point (or perhaps indifference to it) was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade. It would be the mistake the Court would be making in the unlikely event that it created a federal constitutional right of homosexual marriage. It is the mistake the Court has made in Heller....

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation....

I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.


UWS guy said...

Sounds like someone's angling for a SCOTUS nomination by McCain...

chickelit said...

"Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning"

Sound like judicial fiat is overleveraged. Time for a little recession?

Simon said...

A rather silly piece, the more obvious flaws of which were pointed out by two volokh conspirators last week. Ed Whelan, too, has pointed out the transparency of Posner's vestments. Look: you can't just make an argument, label it "originalism," and announce that originalism supports any result an author desires.

UWSguy, I'm not sure why a pragmatist - a judicial liberal, whatever ends he might prefer - like Posner would be an appealing pick for McCain.

Richard Fagin said...

"Heller gives short shrift to the values of federalism..."

Big hole in the reasoning right there: Heller didn't reach the issue of whether the second amendment applies against the states.

That and how does trying to determine the meaning of words stated explicitly in the text of the Constitution become "loose construction" any more than construing terms that do not apppear in the text.

I looked for "construance" in the dictionary and found no such word. I guess Judge Posner meant "construction." Now if that isn't probative on the issue of whether judges make stuff up I don't know what is.

Brian said...

Will someone with greater knowledge than I of judicial ethics (not ethics proper, but the codified code that judges must adhere to), answer me this:

Is there's a problem with Posner's article on Heller, when he has to know that some of the 2nd Amendment challenges to gun restrictions within cities in Illinois - made possible by Heller - will eventually reach a panel of the 7th Circuit where Posner sits?

I know that a federal judge CAN'T publicly comment on a pending case, or on a case that may reach his court & I know that Posner CAN say, e.g., "Hooray for the 2nd Amendment." But I don't know where to draw the line between these poles.

Brian said...

This might be cheating - as it's 2 posts by me in 1 thread - but check this out:


"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In other words: [since] a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron.


"In other words," my foot.

This is not rigorous analysis, and it's beneath the standard set by Posner's prior writings.

The question-begging leap of logic here is Posner's interjection of "since," when dealing with the connection between the what's known as the prefatory and operative clauses of the 2nd Amendment.

Pretty much the entire debate between the Individual Rights interpretation and various Collective Rights interpretations of the 2nd Amendment reduces to the question of whether the purpose stated in the prefatory clause controls or limits the right defined in the operative clause, or whether the prefatory states just one important purpose of a general, individual right to bear arms.

And how does Posner deal with this debate? Not by textual or historical argument, but by conclusory fiat: He sticks "since" between the clauses, thus smuggling in his arbitrary Collective Right conclusion. ("Because" would have done the same trick.)

This is crappy argument, by a genuinely important thinker who, unfortunately, began to believe all the compliments he has received.

former law student said...

I don't get Posner's point at all, because Scalia's reading of the Second Amendment right was as narrow as possible, saying nothing about standards of review, merely stating that an absolute ban on handguns was unconstitutional.

Richard Dolan said...

quixotic: The basic rule for federal judges is set by 28 USC Section 455(a): any federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b) then gives a non-exhaustive list of situations in which disqualification is mandatory, most of which turn on the judge's having a financial interest (regardless of size) in one of the parties, some familial relationship to one of the parties, or the judge's having acted as counsel to one of the parties prior to taking the bench.

Those kinds of interests are quite different from the very common situation where a judge has written or spoken about various legal issues and then is presented with a case in which he must decide some question about them. The latter has never been thought to require recusal (if it did, lots of judges would be recusing themselves from handling even routine contract, tort and other cases).

It is possible, of course, that on some particular issue, a judge's impartiality could reasonably be questioned because of something unusual about his prior discussion of that issue. But merely forming a view about the merits of some legal issue, and having written or spoken about it, is not grounds for disqualification.

Second, while almost all judges routinely decline to discuss the particulars of any case pending before them, that rule has never extended to the legal issues presented by those cases. In all events, the concern is much more about prejudging the facts than whether the judge had already formed a view about some point of law. Particularly in a criminal case, the judge does not want to impair the defendant's right to a fair trial by adding to the pre-trial publicity.

Mortimer Brezny said...

Look: you can't just make an argument, label it "originalism," and announce that originalism supports any result an author desires.

You can if you are Justice Stevens, your name is Richard Epstein, or your name is Richard Posner. Hmm. I am seeing a University of Chicago connection here.

IgnatzEsq said...

I don't think anyone seriously believes that Posner is an 'originalist' in the mold of Scalia or Thomas. He certainly has his own view of the constitution... the choice quote is here:

Constitutional interpretations that relax rather than tighten the Constitution's grip on the legislative and executive branches of government are especially welcome when there are regional or local differences in relevant conditions or in public opinion.

What relevance should this have in a constitutional analysis? It sounds very much to me like he is saying "the constitution means whatever economics would deem is good policy."

I am not sad that Law in Economics hasn't really taken claimed a large hold in the judicial community.

Simon said...

I get quite grumpy about recusal, I'm afraid, because I find the whole business remarkably silly. Let me illustrate it with a concrete case: a few years ago, Justice Scalia was asked to recuse himself from a case involving the pledge of allegiance because he had given a speech indicating that he thought frivolous such a claim. I have argued that this was a mistake; Scalia not only wasn't required to recuse himself in Newdow, he should not have done so, and the litigant who made the request should have been sanctioned. Scalia said nothing in his speech that he hadn't already said in a dissent in an earlier case, Lee v. Weisman.

The idea that a judge should recuse himself if his view on the legal issues in a case are known in advance is deeply flawed; a judge who had no such views would not best be characterized as impartial but as ignorant. Cf. Republican Party of Minnesota v. White, 536 U.S. 765, 777 (2002). The detrimental effect of Scalia's error in judgment in agreeing to recuse from Newdow has already been seen: he received (and rightly rejected) frivolous requests to recuse himself from other cases such as Hamdan v. Rumsfeld. And taken to its logical conclusion, this principle - charaterizing a right to an unbiased judges as a right to a judge who has no preconceived opinions on law - would demand that a judge recuse himself from any case involving a legal principle on which she has previously written an opinion. This is such an absurd standard that it can't be entertained.

In sum, in my view, recusal only arises when the judge is biased with regard to the litigants, and I would read 28 USC § 455 - the recusal statute applicable to Posner - accordingly.

Simon said...

Mort - heh. I guess I should say that you can't do it and ask to be taken seriously. Stevens is a Northwestern alum, I'd thought, not Chicago?

somefeller said...

UWSguy, I'm not sure why a pragmatist - a judicial liberal, whatever ends he might prefer - like Posner would be an appealing pick for McCain.

Well, Posner tends to favor a more deferential role towards the executive and legislative branches in a time of war, as he discussed in his recent book "Not a Suicide Pact: The Constitution in a Time of National Emergency". Plus, he would be easy to get through Senate confirmation, I'd suspect, vast paper trail notwithstanding. If he favors McCain's positions on issues of campaign finance reform and similar legislation (and I have no idea what his views are on such issues), then all those things put together may create an appealing pick for McCain.

Simon said...

Somefeller, although the Democrats' concern with executive power has a shelf life that expires with this administration, suggesting that they might vote for him, he's also on record as saying that he wouldn't vote to overrule Roe which would produce a backlash of the kind McCain's never seen. As learned and talented as he is, Richard Posner simply isn't the kind of judge that the conservative momement has put more than two decades trying to get onto the Supreme Court. I don't know what his personal politics are, but judicially, he's a liberal. He's in the Brennan-Breyer camp. And that makes him ill-suited to a higher calling. Far better Diane Sykes, Robert Young, Sai Prakash, Frank Easterbrook or Steve Calabresi.

somefeller said...

I didn't say he was a likely pick, I said he'd be an appealing one. And if the Senate is much more Democratic than it is now, McCain's choices may be limited. I'm well aware that Posner isn't a movement conservative and I realize his position on Roe may not make many conservatives happy, but conservative opponents won't be able to claim that Posner isn't qualified for the job, and overturning Roe may not be job one for John McCain. In fact, he is just the kind of guy to tell movement conservatives where to go if they don't like his Supreme Court choices, and he can cut deals with who he wants to.

Jesus, those last couple of sentences sounded like a pitch to Democrats or moderate independents to support McCain over Obama, even if they are pro-choice. I gotta stop doing that.

Mortimer Brezny said...


We are both right. Justice Stevens went to Northwestern for law school, but University of Chicago for undergraduate. He also attended the University of Chicago Lab school as a child. And, Justice Stevens cannot be taken seriously as an originalist, just like Dick Epstein and Dick Posner.

TmjUtah said...

Armed men are citizens.

Unarmed men are serfs.

Mr. Posner's article was dishonest in that he attempts to rationalize the core of Heller - the court embraced the amendment as it was written, vice what any intent argument or interpretation might eventually arrive at.

The intent of the article has little to do with Heller in particular. It is intended to characterize, dishonestly, the decision as an act of activism, and thus absent weight or precedent as a an example of what Constitutional jurisprudence should be.

And Posner is a judge, eh?

Well, I'm just a layman. But I'll stand on my call.

Kirk Parker said...

I'm with TMJ.

I formerly viewed Posner as a very interesting fellow, though clearly a bit too enamored of his own wisdom, and a bit too eager to pontificate--sort of a Samuel Johnson on steroids.

But this rant of his has me really scratching my head.

Pastafarian said...

Posner interprets the 2nd amendment as a collective and not an individual right; and then states that "originalists" should therefore agree with his interpretation, since that's what was originally written.

This is idiotic. Has he read any of the other writings of the constitution's authors, which make it abundantly clear that they'd intended this as an absolute individual right? These men didn't just own guns, some of them had actual frigates with cannon out in the flipping harbor.