The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Judge Posner's bizarre swipe at the late Justice Scalia (UPDATED)


Seventh Circuit Judge Richard Posner, who sparred with the late Justice Antonin Scalia on various jurisprudential issues while the latter was alive, writes the following:

I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don't want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don't think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.

I happen to agree with Posner that law professors are too respectful of the Supreme Court. I suspect it has less to do with future clerkships than with past ones; the elite of the constitutional law professoriate is dominated by former Supreme Court clerks, who have an inherent stake in the prestige of the institution. More generally, the less prestige the Supreme Court has, the less prestigious it is to be a professor of constitutional law.

That said, I find Posner's posthumous swipe at Scalia revolting. We all know Posner doesn't think highly, to say the least, of Scalia. Judging from what Posner writes, the distaste seems to stem primarily from jealousy - Posner thinks he would be a far better Supreme Court justice than Scalia was, and he resents that as a "lower court" judge, his writings, though highly influential in their own right, will never get the same attention and accolades as Scalia. (Indeed, one suspects that Posner believes he, unlike every other Justice since Robert Jackson, would have been the "star" the Supreme Court deserves.)

Nevertheless, at least Posner's past criticisms of Scalia were generally substantive. Some find it in poor taste to criticize the recently deceased. Put that aside for the moment, and look at the substance (such as it is) of Posner's critique in this instance. Here is Justice Elena Kagan's statement upon Scalia's death in its entirety:

Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law. I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino's friendship: I will always remember, and greatly miss, his warmth, charm, and generosity. Maureen and the whole Scalia family are in my thoughts and prayers.

This strikes me as a rather anodyne eulogy from one colleague to another, that states the profession's consensus on Scalia: Agree or disagree with his jurisprudence, he was very influential, very smart and dedicated, and wrote well. Why Posner would point to this particular statement as (especially) "absurd" I really can't fathom, beyond the obvious conclusion that Posner believes that it's absurd to think that Scalia was very smart, dedicated, and wrote well, and perhaps also that Scalia was warm, charming and generous. That tells us a lot more about Posner than it does about Scalia, and it's nothing good.

UPDATE: Posner tells Jacob Gershman of the Wall Street Journal, "My principal criticism was not of Scalia, but of what seems to me the hypocrisy of those liberals who are praising Scalia so extravagantly." I don't think that the logical structure of the paragraph I quoted supports Posner's claim. First, he talks about how there haven't been any stars on the Supreme Court since Jackson. Next, he says that the posthumous praise of Scalia is absurd, suggesting that people are treating Scalia as if he had been a star when he wasn't.

Moreover, if he's talking about law professors being too obsequious to the Justices, using Kagan as an example is odd; she used to be an academic, but is rather better known as a Supreme Court Justice. And if Posner meant to be criticizing liberal hypocrisy, both his examples are odd. Minow was speaking as a representative of Harvard Law School, and Kagan is speaking as a colleague. They were not speaking with their "liberal hats" on.

And I still don't see anything extravagant, much less absurd, about their praise.

FURTHER UPDATE: I just discovered that another prominent American jurist referred to Scalia as "the most influential justice of the last quarter-century, his influence ramifying far outside the Court." The writer was none other than Richard Posner, before his feud with Scalia began around a year later.