"No one escapes the aging process... [But] there is scope for rational debate over when decline sets in, how steep it is, how much variance there is..."

"... among persons within particular age groups, and the degree to which the cognitive effects of aging may, up to a point anyway, be offset by experience of life."

Wrote Judge Richard Posner, in his 1996 book “Aging and Old Age," quoted in "After Posner retired from 7th Circuit, a grim diagnosis and a brewing battle" — a new article at Reuters.

ADDED: It was a big surprise when Posner suddenly retired in 2017 — blogged here — so the additional information that surfaced because of this legal dispute is revealing. We are only learning now that at the time he had received a diagnosis of Alzheimer's disease. 

From the Reuter's article:

When Posner quit the 7th Circuit after nearly 36 years on the bench with a single day’s public notice, he told the Chicago Daily Law Bulletin that “I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake.”...

On Feb. 25, 2018, the judge emailed [Brian] Vukadinovich with an offer to share responsibility with him in running the center, which aimed to have representatives in all 50 states to provide pro bono legal help and behind-the-scenes advice to pro se litigants....

The center is the Posner Center of Justice for Pro Se’s (yes, with the apostrophe).

“You would receive a substantial salary in the role I envisage for you, though I can't specify salary yet because the company has as yet no money. Within weeks or perhaps days, however, the company will be reorganized as a 501(c)(3),” Posner wrote, according to an email Vukadinovich forwarded to me. “I ought to be able to raise more than $1 million through donations,” Posner continued. “I will not take any of it for myself, because my wife and I have ample savings and low expenses. I should be able to pay you at least $80,000 a year and I hope more.”

Posner wrote all that a that, 5 months after the  Alzheimer's diagnosis?

Vukadinovich told me he and the judge ultimately agreed upon a salary of $120,000 a year. As it turned out, Posner found fundraising to be more difficult than expected.

In his self-published 2018 book “Helping the Helpless: Justice for Pro Se's: A Company Handbook,” Posner wrote: “My efforts to obtain donations have been strenuous, and include requests sent to almost a hundred lawyers in Chicago, but have thus far yielded only a few fruits (none in the case of my requests to those lawyers!) — not nearly enough to meet the company’s needs.”...

Jonathan Zell, who was co-executive director of the Posner Center alongside Vukadinovich [said] Posner disclosed his Alzheimer’s diagnosis to the staff early on... “He said the doctor showed him a CAT scan that showed he had Alzheimer’s, but that ‘It doesn’t affect me.’”

Zell added, “Of course it did.”

Still, he said the judge, at least in the beginning, “could put on a good show” in friendly interactions. Indeed, Posner continued to practice law in 2018....

Richard Posner says he retired earlier than he'd intended because he "was not getting along with the other judges... about how the court treats pro se litigants."

He thinks pro se litigants "deserve a better shake," the Chicago Daily Law Bulletin reports.

About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers. Very few pro se litigants are provided the opportunity to argue their cases in court. The 7th Circuit rules on most of those cases based on the briefs....

Posner expressed awareness that his retirement "will greatly increase the burden on the existing judges." There are 11 seats on the 7th Circuit Court, and now 4 of them are vacant. One has been vacant for 7 years. And the judges who remain on the court are — as Posner puts it -- "old (one is about to turn 91!)."

The end of an era here in the 7th Circuit: Richard Posner retires, suddenly, beginning tomorrow.

The Chicago Tribune reports.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is "proud to have promoted a pragmatic approach to judging." He said he spent his career applying his view that "judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case."...

"I think [the Supreme Court has] reached a real nadir," Posner said [in an appearance last year]. "Probably only a couple of the justices, (Stephen) Breyer and (Ruth Bader) Ginsburg, are qualified. They're OK, they're not great."....

"Because American law is very confused, you can't avoid mistakes," Posner said. "I'm sure I've made plenty of mistakes, but if one is bothered by that, you can't do the job. If you take it too seriously and are too concerned that you're making mistakes, then it just becomes unbearable."

There's also this, about Posner's youth:

Born in New York, Posner grew up with a left-wing mother who had many radical friends, including a couple who adopted the children of Julius and Ethel Rosenberg, the executed Russian spies, according to a Tribune Magazine profile in 2000. Posner has said he once gave away his train set to the Rosenberg kids....

"I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted."

"This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught."

Wrote 7th Circuit Judge Richard Posner, in Hively v. Ivy Tech Community College, which interpreted the 1964 Civil Rights Act to bar discrimination based on sexual orientation (by viewing it as sex discrimination).

Quoted in "The post-constitutional world of Judge Richard Posner," by Antonin Scalia Law School professor David Bernstein. The dispute about statutory interpretation is characterized as a constitutional problem on the theory that a court that gets too creative with its statutory interpretation is acting like a legislature and that ought to count as a violation of separation of powers.

"Neil Gorsuch wrote the book on assisted suicide. Here’s what he said."

Writes Derek Hawkins in The Washington Post.

In 2006, the year he was nominated to the federal bench, he released a heavily-researched book on the subject titled “The Future of Assisted Suicide and Euthanasia.”... In it, Gorsuch reveals that he firmly opposes assisted suicide and euthanasia, and argues against death with dignity laws, which currently exist in just five states. His reasons, he writes, are rooted in his belief in an “inviolability” of human life.

“All human beings are intrinsically valuable,” he writes in the book, “and the intentional taking of human life by private persons is always wrong.”

You see the connection to arguments for abortion rights. I'm interested to see at how Gorsuch opponents avoid getting tangled up in... death.

[I]n the early 2000s... Gorsuch attended Oxford University [and] studied legal and moral issues related to assisted suicide and euthanasia under the Australian legal scholar John Finnis, a staunch opponent of aid-in-dying measures....

[In his 300-page book, Gorsuch] touches on everything from Greek and Roman laws on taking one’s own life to present-day arguments in support of aid-in-dying legislation.... [He] seems to have been alarmed by the sudden proliferation in the mid-1990s and early-2000s of proposals seeking to legalize physician-assisted suicide or euthanasia. He also cites the flurry of articles, books and defenses that emerged after the late Dr. Jack Kevorkian made headlines in 1990 for helping an Alzheimer’s patient kill herself. One particular work that seemed to bother him was Final Exit, a popular book by the right-to-die organization the Hemlock Society that describes various methods of “self-deliverance,” including suicide by plastic bag and firearm.

Some of Gorsuch’s sharpest criticisms were directed at one of his fellow jurists, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Posner has written in favor of permitting physician-assisted suicide, arguing that the government should not interfere with a person’s decision to take his or her own life, especially in cases where the patient is terminally ill.

Gorsuch rejected that view, writing it would “tend toward, if not require, the legalization not only of assisted suicide and euthanasia, but of any act of consensual homicide.” Posner’s position, he writes, would allow “sadomasochist killings” and “mass suicide pacts,” as well as duels, illicit drug use, organ sales and the “sale of one’s own life.”

Gorsuch concludes his book by envisioning a legal system that allows for terminally ill patients to refuse treatments that would extend their lives, while stopping short of permitting intentional killing.

So, Gorsuch is distinctly not a libertarian. I'm putting the book in my Kindle, because I want to look more closely how he connects abortion to suicide. I've taught the abortion and assisted suicide cases for many years, and what's always seemed importantly different about assisted suicide is the problem that a few years back got labeled "death panels." It's one thing for an individual woman to decide to decline to devote her own body to the gestation of a new individual and for courts to deprive the group of the power to force her to do it. It's quite another to empower the group to deliver death to an individual who is suffering at the end of life when the group is in a position to benefit emotionally and financially from ridding itself of this needy and vulnerable person. 

AND: I do realize that I have a lot of readers who are about to tell me that it's not quite another thing, it's the same thing. I do understand the way in which the 2 things are the same. I am highlighting the way they are different.

Judge Posner "corrects" his statement that only Justices Ginsburg and Breyer are "qualified" to serve on the Supreme Court.

I blogged the statement yesterday, here. Maybe Judge Posner read some of your scornful comments, because now there's this:

The second correction I’d like to see made has to do with my saying that none of the sitting Justices (plus Scalia) is “qualified” for the Supreme Court except Ginsburg and Breyer. This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam (though one of our greatest Justices, Robert Jackson, had just a year of law school, and did not graduate). That was not my intention in using the word “qualified” (if I did use it). I meant good enough to be a Supreme Court Justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.

I wouldn't call that a "correction." It's pretty much what I understood him to mean the first time around.

And as long as I'm going back to that, let me explain what I meant yesterday when I related that Posner post to the post quoting Howard Stern saying that Donald Trump was able to do a good Howard Stern Show interview because he got in "the spirit of the show" which is "to talk like real people." I said:

Talking like a real person... then running for office. That's dangerous... unless you're a saintly real person. Most politicians get on-task, self-censoring, and robotic. That's the normal way to stay out of this kind of trouble.  

To get appointed to the Supreme Court you have to control your speech and not give the President's antagonists material they can use against you. You cannot be Robert Bork. That is, you cannot be an outspoken, interesting person like Judge Posner. That's what disqualifies you politically. So there's reason to say that everyone who is really qualified is politically disqualified.

And I do regret using the word "saintly." I think more highly of saints than that, and I bow to Paddy O's comment:

A saint would have even less chance than Trump. A real saint offends all the powerful, so wouldn't even get a chance to stand on a primary stage.

"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."

Said Judge Richard Posner of the Seventh Circuit.

"Qualified" is the new high standard. We're lucky to get an okay judge these days. Greatness is showy and not a good way to get a lofty judicial nomination. Greatness is disqualifying... and I'm sure Posner knows that.

"When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of 'priors.'"

Writes Judge Richard A. Posner in a WaPo column titled "The Supreme Court is a political court. Republicans’ actions are proof."

Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. The tools I am calling priors can in principle and sometimes in practice be overridden by evidence. But often they are impervious to evidence, being deeply embedded in what we are, and that is plainly true of judging — not in every case but in cases that can’t be resolved by interpretation or some other decision-making tool that everyone understands and uses in an identical way. The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion....

I may seem to be criticizing the court by calling it politicized. That is not my intention....

IN THE COMMENTS: PB says: "Singling out one party over the other is idiotic, in spite of my respect for Posner."

I think Posner would admit that if the parties were reversed and the President were Republican and the Senate Democrat that the same strategies would be followed by the President and the Senate. His theory does dictate that, even though the WaPo headline writer makes this piece looks like a swipe at Republicans.

This reminds me of a passage I was just reading in the great book about the Supreme Court, "The Brethren.": "Brennan liked to tell his clerks that Harlan had been the 'only real judge' on the Court in the years of Brennan’s service, the only Justice who weighed the legal issues with sufficient dispassion."

ADDED: Posner makes much of judges' religion and elsewhere in WaPo today there's "What would a Hindu justice mean for the Supreme Court?" (by Julie Zauzmer). One of the buzzed about names is Sri Srinivasan, who is Hindu, so Zauzmer — speaking with much less depth about law than Posner — asks how Hinduism might affect "religiously charged issues like abortion and gay rights." She finds an expert on Hinduism who isn't thinking about Posner's notion of "priors" when he tells her:

“There is no such thing as a Hindu belief about, say, abortion or stem cell research right now which would influence any particular case. Any Hindu who occupies a judicial position will interpret the law as it is, rather than through his or her religious viewpoint... There is no Hindu baggage, as such, at all.”

By the way, if we're going to think about the religion that exists in the minds that will be making decisions for us, and I think it is something important to consider, we ought to remember that there are currently no Protestants on the Court. Yes, a Hindu would give us another "first," but in terms of representing the majority of Americans and the history and tradition of America, the complete absence of Protestants is dramatic. 

Richard Posner (with Eric Segall) publishes a NYT op-ed titled "Justice Scalia’s Majoritarian Theocracy."

That sounds inflammatory!

The short essay cites some cases in which Justice Scalia, by not recognizing claims of constitutional right, leaves some policy to be determined by the processes of democracy. Since the Americans who participate in our democracy often think through political issues in minds imbued with religion, the results of the majoritarian process could — if you want to stretch and be inflammatory — be called a theocracy.

To be fair, Posner and Segall only say that Justice Scalia's "political ideal verges on majoritarian theocracy."

It's the NYT that's responsible for the headline "Justice Scalia’s Majoritarian Theocracy."

Ilya Somin on "Judge Posner’s troubling explanation for his shift on same-sex marriage."

"Posner’s argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed...."

Under Posner’s approach, judicial enforcement of constitutional rights would only occur when it is least needed – when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise. If it is indeed true that “[t]he arguments against same-sex marriage were never strong,” then gays and lesbians should not have had to wait until those rationales became unpopular, for judges to rule against them....

There is no question that judicial decisions are often influenced by changes in public opinion.... But recognizing that empirical reality is very different from offering a normative justification for judicial nonenforcement of unpopular rights....

I've got a problem with the supply-of-women argument for distinguishing polygamy from same-sex marriage.

Yesterday, I put up a post about an argument I made 9 years ago about how to distinguish polygamy from same-sex marriage. This was an argument based on economics and government benefits (and I admitted that the #LoveWins aspects of Obergefell made my distinction more difficult).

I was only noticing my old argument because my son John had remembered it and blogged about it. But today I see that John expanded his blog post to add a different distinction that 2 very prominent commentators have made in the wake of Obergefell.

Richard Posner says:

[P]olygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

And Jonathan Rauch says:

[T]he case for gay marriage is the case against polygamy, and the public will be smart enough to understand the difference.

Gay marriage is about extending the opportunity to marry to people who lack it; polygamy, in practice, is about exactly the opposite: withdrawing marriage opportunity from people who now have it. Gay marriage succeeded because no one could identify any plausible channels through which it might damage heterosexual marriage; with polygamy, the worries are many, the history clear, and the channels well understood.

Well, I've got a problem with that! Talk about a male perspective! What about the women who want to choose to share one man? They should be denied to preserve a pool of marriageable women for all the extra males that would otherwise have scarce pickings? Are women some kind of natural resource to be conserved for the benefit of males?

As the old saying goes: Feminism is the radical notion that women are people. If women think they are better off as multiple wives to one high-quality male, why should they be cut off from that way of life so that some less-desired male will have better odds of getting a woman for himself? Is this everybody-gets-just-one theory of marriage some kind of welfare program for undesirable males?

I can see that society fears its renegade young males and would like to tame them through marriage, leveraging the power of their sexuality lest they expend that energy in acts of violence and dissolution. I can see the idea of using women for this purpose and rejecting polygamy because it takes women out of commission in that service.

I see the scheme. I see the mechanism. But if you use that as your overt argument, you're going to run up against ideas about women's autonomy and freedom. We're not society's tools. Why should we be denied marriage to the man we want, in a sisterhood with other women who want the same thing? You'd better have a reason other than your need to exploit us for the purposes of men.

And by the way, women pairing up with women also takes women out of the pool of women who are available to men. Rauch said "Gay marriage succeeded because no one could identify any plausible channels through which it might damage heterosexual marriage," but, ironically, he just made me see an argument for that damage.

And I wouldn't use the term "gay marriage," because no one will check whether the 2 women want to have sex with each other. 2 women could marry to obtain the economic benefits of the government's legal status of marriage. Why shouldn't 2 women marry to create a household within which they could manage childcare, file a joint tax return, and get better health insurance for the blended group?

"Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs..."

"... we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at."

Said Judge Posner, in a piece titled "The chief justice’s dissent is heartless."



ADDED: Perhaps the heart should be ripped out. Maybe we like our judges heartless. But "heart" has been a big theme in judging judges.

At the John Roberts confirmation hearing, Senator Teddy Kennedy probed him about heart:

KENNEDY: [Y]ou were enormously complimentary about Earl Warren, about him understanding not only the law, but also understanding the importance of a chief justice, bringing other justices together in a very important way in terms of dealing with a societal issue and a question. And I think we're a fairer country and a fairer land because of this.This was really the bringing together of the mind and the heart. Oliver Wendell Holmes said, "It's dangerous to think about legal issues can be worked out like mathematics."

And another nominee who was here not too long ago [Stephen Breyer] had this to say about the head and the heart: "What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. if you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse."

How did Roberts respond?

I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives.  I always insisted when I was a lawyer about getting out into the field and seeing. If I was arguing a case involving native villages in Alaska, I went to the villages. If I was arguing a case about an assembly line, I went to the assembly line. You had to see where the case was going to have its impact and what it's impression was going to be on people. Now, none of those cases were as important as Brown v. Board of Education but the basic principle is the same: I think judge's do have to appreciate that they're dealing with real people with real cases.I think judges do have to appreciate that they're dealing with real people with real cases. We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.

Voting against Roberts, Senator Barack Obama said:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult.... [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

After Obama became President and got to choose his own Justice, his nominee, Sonia Sotomayor, disentangled herself from that heart business: 

The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law.... What judges consider is what the law says.

Obama had chosen Sotomayor after doubling down on this idea of heart, saying:

We need somebody 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. And that's the criteria by which I'm going to be selecting my judges.

When he said that, I blogged:

[W]e know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?

And I remember way back in 2005, when President George W. Bush was struggling to convince us that Harriet Miers belonged on the Supreme Court. "I know her; I know her heart" he said, and I blogged:

I razzed the Democrats for all the "heart" talk at the Roberts confirmation hearings, and the word makes me suspicious. Bush knows hearts (and he can look into a man's eye and see his soul). One wonders if his father believed he knew David Souter's heart...

This reminds me. I once conceived of a superhero I called Framerman:

Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman — bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies — clutches at his heart and succumbs.

Well, so, even Framerman had a heart!

"The Supreme Court now has a chance to set something right in the voting-rights area."

Says Linda Greenhouse, pressuring the Court to take the case about the Wisconsin voter-ID law — which was upheld by a 7th Circuit panel. The vote to rehear the case by the full 7th Circuit court failed 5 to 5, with the eminent Judge Posner dissenting at length.

What seemed most significant to Judge Posner was what he called the “changed political culture in the United States” in the years since the Supreme Court took a benign view of voter ID [in Crawford v. Marion County Election Board]. “All the strict photo ID states are politically conservative,” he wrote, illustrating the point with a map and a “political makeup” list of the nine strictest states, all with Republican legislatures. The claim that photo ID was necessary to deter or catch voter-impersonation fraud was, Judge Posner wrote, “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

He added: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”

The Wisconsin Attorney General Brad D. Schimel, in a brief opposing Supreme Court review, said: "It is not this court’s job to referee a debate between the Seventh Circuit panel and Judge Posner," which Greenhouse admits is a good line, even as she bashes the brief as "weak on its facts, to put it charitably."

"Law has nothing to do with science."

"It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor."

Said Judge Richard Posner, answering the question "In what ways, if any, does it make sense to speak of the study of law as the study of legal science?"

Also:

Question: Do you think constitutional law should be taught in the first year? If so, why? If not, why not?

Posner:  Absolutely not. It’s a terrible field, dreadfully politicized.

Later: "Most published legal scholarship is ephemeral, especially in constitutional law, an analytically weak and excessively politicized field." And: "Law is an interesting and important field, but it is also a weak field, and this limits the potential of academic law." And:

Question: There seems to be no end to scholarship on originalism, be it of the liberal or conservative variety. Why do you suppose that is and what is your opinion on the matter?

Posner: It’s an aspect of the preoccupation of the legal academic community with the Supreme Court, for it is mainly in relation to constitutional provisions that the debate over originalism rages. The preoccupation has very little value, and originalism is largely a fake, concealing the political preferences that drive most constitutional adjudication, owing to the political stakes and the extreme vagueness of key constitutional provisions.

And Posner expresses regret that his own scholarship has been "[e]xcessively conservative, and insufficiently attentive to psychology and to the politicization of much of law."

"It is a misunderstanding of freedom... to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him."

"It would mean that a person was not exercising his free will when in response to the question whether he preferred vanilla or chocolate ice cream he said vanilla, because it was the only honest answer that he could have given and therefore 'he had no choice.'"

Wrote Judge Posner (in a 2003 case that comes up in my Religion and the Constitution class).

"Unless conservatives and liberals are masochists, promoting laws that hurt them, these laws must suppress minority voting."

Writes 7th Circuit Judge Richard Posner, marshaling the evidence about voter ID laws, including the evidence that "conservatives... support them and liberals... oppose them."

Here's the opinion, dissenting from the denial of a rehearing en banc, in the Wisconsin voter ID case.

As predicted, the 7th Circuit Court of Appeals panel has struck down the Wisconsin and Indiana bans on same-sex marriage.

Here's my blog post on the oral argument — which was only 9 days ago. The opinion is written by Judge Richard Posner, who at the oral argument was audibly disgusted by the efforts to justify the ban.

Here's a PDF of today's opinion, which I'm just starting to read. I can see that Posner puts his distinctive imprint on the standard equal protection doctrine:

The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclu- sive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under- inclusive in extending marriage rights to other non- procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.

ADDED: Indiana claimed its interest was based on the biological reality that only heterosexual sex produces babies.

"While lawyers for Wisconsin and Indiana attempted to defend their state’s marriage bans, Posner issued a series of withering bench slaps..."

"... that unmasked anti-gay arguments as the silly nonsense that they are. Reading this string of brutal retorts is fun enough — but it’s even better to listen to them delivered in Posner’s own distinctive cadence. With the help of my Slate colleague Jeff Friedrich, I’ve collected the most exhilarating, satisfying, and hilarious of the bunch."

Nice job presenting the clips, by Mark Joseph Stern at Slate. And I'm saying that based on listening to the entire thing myself. I summarized it last night like this:

"These people and their adopted children are harmed by your law [banning same-sex marriage]. The question is what is the offsetting benefit of your law. Who is being helped?"

Asked Judge Richard Posner, as the 7th Circuit heard argument today in cases challenging Wisconsin and Indiana law.

Based on the linked news report, there was nothing new to be said on the well-worn subject, even with Posner on the panel. But I will listen to the argument, here (Wisconsin) and here (Indiana), and update this post if I hear anything notable.

It seems predictable that the 7th Circuit will reject the ban and that the issue will soon be decided by the Supreme Court. 

ADDED: I've listened to the argument and recommend it. It's lively, and the government lawyers are on the run, but repeatedly cornered by the simple and predictable demand to articulate an interest served by excluding gay people from marriage. All of the judges clearly reject tradition as the interest, and the idea of leaving it to the legislature is repeatedly scoffed at as merely getting us back to the need to at least show some legitimate governmental interest. There is a great deal of attention to the welfare of children, with the government lawyers stressing the capacity of heterosexuals to produce children and the value of channeling this phenomenon into stable relationships for the sake of the children and the judges unable to see the reason to exclude gay people, who may also have children, especially given that the states in these cases both allow gay people to adopt. Why do the states want to hurt those kids? I lost track of the number of times the government lawyers were stymied by that question.

"If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form..."

"... that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives."

Wrote Judge Posner, for the 7th Circuit panel that upheld the district judge's denial of a preliminary injunction. The claim is based on the Religious Freedom Restoration Act, a federal statute, which requires the federal government refrain from substantial burdens on religion unless they are necessary to meet a compelling government interest. Posner finds it hard to see the burden in signing a 2-page form that's mostly "boring boilerplate."

Judge Flaum dissented:

We are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.