"I don’t endorse the argument of the philosopher John Rawls that no one is entitled to a high income because..."

"... even characteristics that we think internal rather than external to a person, like IQ and leadership skills and athletic skills and energy and good health, are ultimately the product of luck. Therefore, Rawls argued, no one should be allowed to keep more of his earnings than necessary to 'incentivize' him to exert himself in a way that will maximize the social product."

So says Richard Posner. His objection is:

That treats people like the cells of an animal’s body, or the ants in an ant heap. Rather my point is that, to the extent reducing income inequality increases overall social welfare, there is a case for programs, financed by the well to do, that increase overall welfare by more than the cost of the programs. There is no reason to think that the cost would impose a crushing burden on the well to do, a result that would be objectionable quite apart from the costs in diminished incentives, and related costs such as tax avoidance and emigration.

Chew on that. I was distracted by "ant heap." Who says "ant heap" rather than "ant hill"?  I'm more the literary type than the economic. But speaking of departmentalization of each of us having our various skills and predilections, whether inborn or cultivated, my searching for the answer to my heap/hill question brought me quickly to this Robert Frost poem, "Departmental":

An ant on the tablecloth
Ran into a dormant moth
Of many times his size.
He showed not the least surprise.
His business wasn't with such.
He gave it scarcely a touch,
And was off on his duty run.
Yet if he encountered one
Of the hive's enquiry squad
Whose work is to find out God
And the nature of time and space,
He would put him onto the case.
Ants are a curious race;
One crossing with hurried tread
The body of one of their dead
Isn't given a moment's arrest-
Seems not even impressed.
But he no doubt reports to any
With whom he crosses antennae,
And they no doubt report
To the higher-up at court.
Then word goes forth in Formic:
"Death's come to Jerry McCormic,
Our selfless forager Jerry.
Will the special Janizary
Whose office it is to bury
The dead of the commissary
Go bring him home to his people.
Lay him in state on a sepal.
Wrap him for shroud in a petal.
Embalm him with ichor of nettle.
This is the word of your Queen."
And presently on the scene
Appears a solemn mortician;
And taking formal position,
With feelers calmly atwiddle,
Seizes the dead by the middle,
And heaving him high in air,
Carries him out of there.
No one stands round to stare.
It is nobody else's affair
It couldn't be called ungentle
But how thoroughly departmental

Put that in your Rawlsian/Posnerian analysis.

The 7th Circuit strikes down the Illinois concealed-carry ban.

The Sun-Times reports:

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home," Judge Richard Posner wrote in the court's majority opinion.

"The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense," he continued.

"Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden," Posner wrote.

The Illinois legislature has 180 days to write a better-tailored law.

"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Justice Scalia is out and about, antagonizing — antoninonizing — students, this time at Princeton, with "a form of argument that I thought you would have known, which is called the 'reduction to the absurd.'"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."

[The student] said afterward that he was not persuaded by Scalia's answer. He said he believes Scalia's writings tend to "dehumanize" gays.

Actually, he's humanizing you by crediting you with the capacity to comprehend rhetoric and engage in an on-the-fly verbal interchange. But it is easier to dehumanize your adversary. Afterwards.

What do they teach you at Princeton?

ADDED: Jaltcoh has 3 thoughts about this.

AND: David Lat reminds us about what Judge Posner said about horse meat: "a state is permitted, within reason, to express disgust..."

Is Posner wrong about the value of letting swing state voters determine who will be President?

Jaltcoh thinks so, and I push back in the comments.

Richard Posner gives 5 reasons to keep the Electoral College.

In case you want to contemplate the unachievable goal of getting rid of it or you just want to learn to love what you can't avoid.

After the 2000 election, I read 3 books, published in 1971/1972, dealing with the inquiry into the Electoral College that grew out of the very close 1960 election. The great constitutional law scholar Alexander Bickel wrote one of the books, "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System." Here's the PDF of the article I wrote about it.

Posner doesn't mention one benefit to the Electoral College that was considered very important back in the 1960s: the perpetuation of the 2-party system. From my article:

Although the electoral college does not eliminate third parties, it suppresses them. Only the geographically concentrated third party can gain electoral votes. If third parties have a role to play, one should argue that it is the third party that transcends state borders that is more likely to infuse the political debate with worthy new ideas; better a Henry Wallace than a George Wallace. Despite the disturbing ability of a third party candidate like George Wallace to make headway in the electoral college system by appealing to regional prejudice, that candidate did not succeed. The threat he posed within the electoral college system was overshadowed, at least for some observers, by the potential under the direct vote system for multiple candidates to jockey for position in a runoff or to seek to provoke a runoff and then bargain with candidates who might need to make deals or concessions to win in the runoff. Withdrawing the need to win a plurality in a state to acquire votes would energize third parties who tapped national popular issues. More candidates would enter the field, creating a greater likelihood of a runoff election and lowering the percentage necessary to qualify for the runoff. What if moderate candidates cancelled each other out, resulting in a runoff between two ideologues or extremists? What would stop major party candidates who failed to win their party's nomination from routinely joining the race? Instead of opening the democratic process to greater participation, one might end up with a small crowd of “demagogues, quick-cure medicine men, and ... fascists of left and right” who would collude among themselves.

The perceived need to preserve the 2-party system led the ABA to identify 6 other reasons why it would continue without the Electoral College:

... (1) the tendency of an existing form to persist; (2) the use of plurality votes to determine the winners of single member districts; (3) public consensus; (4) a supposed American cultural homogeneity; (5) political maturity; and (6) the natural tendency toward dualism. 

Yeah, I know: what?! But that's what they said. You may wonder what's so damned good about the 2-party system. But a key point was: You can't amend the Constitution without the votes of the present members of Congress and the state legislatures, and these folks are all there as a consequence of the 2-party system. The argument they made out loud was that the 2-party system produced stability and moderation.

"Years ago, I knew two kids. One was a tall and wispy twerp whose arrogance exceeded his stratospheric brilliance."

"The other was a squat punk whose beautiful mind spewed quips like switchblades."

By three orders of magnitude, these two were far smarter than the rest of us.

It was on the playground where they struggled. The twerp found that being haughty prompted a vigorous ass kicking. The punk learned that being mouthy got you pantsed in front of the girls. But, over time, the playground changed them. Each kid started to act normally. With that, the rest of us came to respect and even appreciate them. More importantly, their socialization prompted us to consider what they had to say.

Maybe I’m wrong, but perhaps Posner and Scalia (and their snarly stand-ins) should visit a playground.

The writer of that snark is himself a federal judge, I note — with a nudge to a colleague of mine who was chastising me for analyzing the psychology of judges. (How do I know their motives? I don't. I speculate!)

But I'm fascinated to see a judge opine that other judges are guys who failed to get enough bullying when they were kids! Who's exercising the momentous power to say what they law is and inflict their opinion on the rest of us? Abnormal people who could've used a good ass-kicking... a good pantsing in front of the girls.

"Well, at least one person is getting annoyed by the endless back and forth between Posner and Scalia."

"But that’s just one person. We’ll continue to beat that horse until it’s extra dead."

I must say I find the ongoing back and forth between these 2 judges irritating.

Both know what the other is saying, which is what he's been saying for years. Why must they act out their diva drama in public… if TNR may be considered public.

Bryan Garner defends the book he wrote with Justice Scalia against the attack by Judge Posner...

... and Posner responds to the attack. Posner's response begins:

Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.

Why is that a good way to begin the response? Garner's essay ends:

Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.

It's a dispute about the methodology of legal interpretation, but it's devolved into something that seems oddly personalized.

Garner also makes the argument: Stanley Fish liked our book:

In the New York Times (7-16-2012), Stanley Fish—whose work we cite negatively four times, by the way — praised Reading Law “for making complicated and sometimes arcane points of doctrine seem accessible and even plain.” That was indeed our goal.

As if Posner would stand down because Fish offered the blandest of praise.

Fish did praise it — in a review in which he also said that the book’s “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences” is wrong.

***

Here's the book — "Reading Law: The Interpretation of Legal Texts." Who is it for? Even the Kindle edition costs $40. I won't pay that much for a book that seems to be re-explaining a very familiar theory, even if it has lots of examples to make things super-clear. I tend to suspect that the clarity is achieved at the expense of honesty about what is really happening in the cases. Note that Fish said the book made complicated matters "seem accessible and even plain." "Seem" is the operative word.

6 highlights from Chris Wallace's great interview with Justice Scalia.

From the transcript of this morning's Fox News Sunday (and video).

1. Obamacare. Since Scalia is on the show to promote his new book, Wallace duly begins with a quote from the book: "A statute should be interpreted in a way that avoids placing its constitutionality in doubt." Now, doesn't that undercut Scalia's criticism of Chief Justice Roberts's decision in the Obamacare case? Roberts found that what was called a "penalty" (for failure to acquire health insurance) was actually a tax, and reading the statute that way avoided the constitutional problem. Scalia responded that his principle of interpretation only allows the judge "to find a meaning that the language will bear":

You don't interpret a penalty to be a pig. It can't be a pig. And what my dissent said in the... Affordable Care Act was simply that there is no way to regard this penalty as a tax. It simply doesn't bear that meaning. You cannot give -- in order to save the constitutionality, you cannot give the text a meaning it will not bear.

How does one know what the language will bear and will not bear? Yes, it's not a pig, but why isn't it a tax? There wasn't any pursuit of that line of inquiry, but later in the interview, Wallace came back to the case, that time to ask about the new reports that said Roberts changed his mind in the middle of working on the Obamacare opinion. Wallace introduced the topic by asking if Scalia himself had ever changed his mind after voting in conference. Scalia said:

I have not only done that, I have changed my mind after have been assigned to write the majority opinion. I've written the opinion the other way, it just wouldn't write.... There is... nothing wrong with that.

Wallace then asked "Did Chief Justice Roberts change his mind in the ObamaCare case?" Scalia says he doesn't know — "You'll have to ask him." And Wallace tries again, asking whether at some point Scalia had a majority. Again, Scalia refuses: "I don't talk about internal court proceedings." Wallace resorts to the cutesy: "Just this once?" And Scalia responds in a similarly childish form: "No, never ever. Never ever." But when Wallace accepts the pushback and just says "OK," Scalia opens up:

And, listen, those who do, you shouldn't believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don't respond. It's the tradition of common law judges to lay back and take it. You don't respond in the press. Or B, that reporter had the information from some who was [sic] breaking the oath of confidentiality, which means that's an unreliable person. So, either way, you should not -- you should not put any stock in reports about what was going on in the secrecy of the court.

Take that Jan Crawford!

2. Second Amendment. Wallace asked about the scope of the right protected by the Second Amendment (which the Supreme Court did not detail in Heller). Scalia says:

What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.... My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we'll see what those limitations are as applied to modern weapons. 

It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried." But that doesn't mean it does apply to everything that can be hand-carried, for example, "handheld rocket launchers that can bring down airplanes." These are matters yet to be decided.

3. "How political is the court?" Scalia — unsurprisingly — says the Court isn't political at all, even though these days, the conservative/liberal split aligns with Republican appointees and Democratic appointees:

That... shows that they had been selected because of their judicial philosophy. The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade. Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with th[ese] philosophies?

4. Obama and the Court. Wallace invited Scalia to comment on Obama's criticizing the Supreme Court, first with video of 2010 State of the Union speech with Obama calling out the Justices who were sitting right in front of him. Scalia said that's why he doesn't attend. Second, Wallace showed video of Obama "jawboning" the Court while the Obamacare case was pending. Scalia called it "unusual" — "But as I say, I don't criticize the president publicly and he normally doesn't criticize me."

WALLACE: Did you feel any pressure as a result of that to vote a certain way?

SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.

The "yes" didn't mean "yes" other than yes, I get what you're asking. It was absolutely clear in the video that he didn't feel at all threatened.

WALLACE: Did you view that as a threat?

SCALIA: I didn't view it as a threat. I'm not even sure I heard it.

WALLACE: Well, you heard it now.

SCALIA: You brought it to my attention.

Ha ha. That was a little theater, acting out his attitude that the President is over there in his branch, doing whatever it is he does, and I'm here in mine, fully insulated.

5. Dissing Judge Posner. Wallace quoted Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

6. He's 76, but is he a fool?

WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?

SCALIA: I don't know. I haven't decided when to retire.

WALLACE: But I mean, does it go through your mind, if I retire, I'd like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view...?

SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool.

See how cagey Wallace was? Scalia didn't want to answer the question about timing his retirement to give the appointment to a conservative President, but then Wallace asked the question a different way, referring to the earlier discussion about why it seems — wrongly! — that the Court is political, and that caused Scalia to give the answer, which is of course he's going to time it. It amused me that he tacked on the ending "Unless you think I'm a fool," because Wallace actually did fool him into answering the question he didn't want to answer and because Wallace extracted that answer — which makes Scalia look political — by referring to the earlier discussion of why the Court looks political — but isn't!

"The U.S. Court of Appeals for the Seventh Circuit, en banc, ruled that it violated the First Amendment’s no-religious-establishments rule..."

"... to hold high-school graduation ceremonies in a particular church building because of that particular building’s 'proselytizing environment.'"

There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise....

Here's the opinion. In dissent, Judge Easterbrook says: "It is easier to justify graduation in a church than voting in a church." I agree. My voting place is in a church, and I don't think that should be allowed.

No one should feel obliged by conscience or faith to give up his influence in governance—and that’s what voting represents. A rule of neutrality between religious and secular sites permits government to use religious venues for graduation and voting alike, though I do not think it wise to use a church for either function.

So Judge Easterbrook agrees with me.

But acting inconsiderately toward persons whose sincere views disfavor conducting public business in religious venues differs from establishing a religion.

Now, Judge Posner — also dissenting — writes with confident expectation that the Supreme Court will pay attention:

The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance....

The text and history of the establishment clause provide no clue to whether a public high school (a virtually nonexistent institution in the eighteenth century) “establishes” religion when it holds its graduation ceremony in a church. The opaque phrase “respecting an establishment” casts no light on the question....

The students at Brookfield High overwhelmingly and emphatically deemed the school’s gym an inadequate venue for the graduation ceremony. Yet it was the only possible one on the school’s grounds (apart from the football field, also deemed inadequate — the students wanted to be indoors with air conditioning). Bowing to their wishes the school chose Elmbrook Church, the students’ first choice....

There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion.

How often are visitors to churches converted by the visit? Conversion generally precedes attendance. How many of the millions of non-Catholic visitors to St. Peter’s—Protestants, Jews, Muslims, Hindus, Buddhists, atheists, and so forth—have converted to Catholicism as a result of their visit to that awesome site? I mean no disrespect to the Elmbrook Church in pointing out that no counterpart to the treasures of St. Peter’s that include Bernini’s baldacchino and Michelangelo’s Pietà, the tombs of 91 Popes, a fragment of the True Cross, and the spear that pierced Christ’s side at the Crucifixion (of course the authenticity of the last two items has been questioned), is to be found there.

The plaintiffs argue that by holding its graduation ceremony in a church festooned with religious symbols, Broomfield High is “coercing students and parents to attend a house of worship.” “Coercing?” That is hyperbole. Attendance at graduation isn’t compulsory, graduation is not a “coerced activity,” and a student who attends graduation in Elmbrook Church no more attends a religious ceremony than the cleaning crew when it sweeps the church’s aisles. When the Supreme Court said in Lee v. Weisman, supra, 505 U.S. at 586, 595, in florid hyperbole that “attendance and participation in the [graduation ceremony] are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma,” as “it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years,” it was whistling in the dark.

The plaintiffs say the church is “using its control over the environment of the graduation ceremonies to expose thousands of attendees per year—including numerous youths—to its religious message.” There is nothing to suggest that the church enhances the religiosity of its interior décor for the graduation. The interior is what it is. A church that rents space to a secular organization shouldn’t be required to pretend it isn’t a church.
 
The reductio ad absurdum is the plaintiffs’ complaint, as unrealistic about the modern American high schooler as the Supreme Court in Lee v. Waisman, that when the students sit down in the church pews for the graduation ceremony, church literature visible to them in the book racks on the backs of the pews in front of them tells them they’re “God’s Little Lambs,” and thoughtfully provides them with a “Scribble Card for God’s Little Lambs” and a pencil to scribble with, and thus tries to seduce them to Evangelical Protestantism. Imagine how 18-year-olds react to being called little lambs! True, the family members who attend the graduation may include children, but in no sense are they coerced by the school to attend the graduation.

The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible. Religion is for good or ill a large component of human culture, including American culture. Religious words and symbols are ubiquitous....

The interior of the Elmbrook Church, perhaps the very idea of a church, offends the plaintiffs. But offense can’t be the criterion for an establishment of religion; if it were, no challenge based on the establishment clause would ever fail, for those challenges are invariably mounted by people offended by the government’s association with religion.

"I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you..."

"... they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position."

Said Judge Richard Posner.

(Via AlphaLiberal.)

ADDED: Posner is admitting that there is a psychodynamic among judges that affects how judges decide cases.

IN THE COMMENTS: YoungHegelian said:

Because, when you're a grown man at the top of your game, like Chief Justice, and you screw up big time, and your friends of long standing tell you "John, you screwed up big time," what you do is go find another bunch of friends who'll kiss your ass every time you screw up big time.

What if the other bunch is the cool kids?

AND: Remember when Laurence Tribe advised Barack Obama about how Elena Kagan might have some "purchase on Tony Kennedy's mind." (I said: "I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain." But there were always other mountains to climb.)

"It’s unclear how Apple and Google will respond to Posner’s surprise pounding of them. .'"

Says WaPo noting Judge Posner's decision to dismiss the patent case and his related blog post:

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement.....

Posner’s decision to descend from the 7th Circuit to oversee the Google-Apple trial suggests he wished to step in and do something directly about the patent system. (Ordinarily, Posner would never hear a patent case as all patent appeals are sent to the DC-based Court of Appeals for the Federal Circuit; that court has maintained an ideological bias in favor of patent owners despite repeated rebuffs by the Supreme Court).

And this is from the blog post, which spoke generally about capitalism and included the phrase "dysfunctional patent system":

We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals.

Judge Posner includes a photograph of Bob Marley in an opinion and sloughs off worries about copyright.

The case was about dreadlocks (and the prison officials who cut them off), and Posner said his use of the photo fit the "fair use" doctrine:

"It's not as if we're selling our opinions in competition with a photographer... Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Posner did not give the photographer credit, though it's a commercial photographer who uses Getty Images to collect fees. But Posner just grabbed the photo from the internet. He says "With the Internet, it's extraordinarily easy to find photographs of anything," so there's a good chance he encountered the photograph on a website that didn't name the photographer.

Posner seems to think it's quite fun to toss photographs into judicial opinions. It reminds me of the way some judges like to quote song lyrics or lines from movies. Blogging, I always feel that it's more questionable to use an image that someone else created than it is to cut and paste a block of text, but why should that be? I quote blocks of text all the time, but I remember, when I started blogging, worrying quite a bit about whether it was acceptable to copy that much text, so I'm relieved to hear a judge take a broad view of fair use and set an example.

Here's an opinion where Posner includes a picture of an ostrich with its head in the sand and a picture of (presumably) a lawyer with his head in the sand as he criticizes a lawyer who failed to cite a case that should have been cited. The lawyer filed a grievance against Posner for funning with him like that. The grievance was dismissed, and Posner offers the classic nonapology "I'm sorry he was upset by it."

There's more going on here than copyright. There's also the idea that judges are supposed to be neutral and sober. They wield power against real individuals, and it's a power that's supposed to come solely from law, not from any will of the judge's own. In that light, when the judge displays that he's enjoying the experience or playing to the crowd, entertaining the audience, we may fear that he's doing something wrong. This is why most judicial opinions are so godawful tedious, as the judges all sound alike and phrase everything in the dullest possible way. And there are no pictures!

This reminds me. We lawprofs have to make students read these texts, and we use casebooks that have edited the tediously verbose writings down, but the casebooks are still ponderous — in more ways that one. I'd like to take iBooks Author — an amusing new app — throw all the cases I assign into it. (All the judicial opinions are in the public domain, so there's no copyright issue at all.) Edit the cases down, summarize some things, and embed some pictures in a Posneresque way.

For example, take Griswold v. Connecticut (the old birth control case that flummoxed Mitt Romney in the debate the other day). There's a point in Justice Harlan's concurring opinion where he writes:

The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

That's just begging for a photograph grabbed from the internet.

Should Althouse use iBooks Author to write a Posneresquely amusing Constitutional Law casebook?
	No. It would be undignified and unserious and thus not usable in a real law school class.
	Yes. Students (and other readers) will love it.
	No. It won't be that good. It might be annoying. And Althouse has better things to spend time on.
	Yes. I'd like to see Althouse's creative energy drained away in this idiotic project.
pollcode.com free polls

IN THE COMMENTS: Freeman Hunt said:

Posner is The Crack Emcee of judicial opinions?

Richard Posner says a judge in a hard case may properly "fall back on some strong moral or even religious feeling."

From an interview in the NYRB that you won't be able to access in full if you are not a subscriber:

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.

Via Christopher Shea in the Wall Street Journal, who characterizes Posner's approach as "an unspeakable opinion these days."

Unspeakable? Really? I hear it all the time... often from the same leftish professors who've made a point of loathing Posner. I've heard a lot of that loathing because my law school lies within the 7th Circuit, where Judge Posner sits... and where he will remain, because the place where his opinion really is unspeakable is (as Shea notes) before the Senate Judiciary Committee, if you want to get confirmed to a new judicial appointment.

And thus are we deprived of the very best minds, as Posner — about as good as we can get in a judge — bluntly points out:

One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.

ADDED: Here's the book the NYRB interview is based on: "How Judges Think." It's excellent. (But it's not available on Kindle, annoyingly.)

IN THE COMMENTS: Don M said:

I would prefer a court like this.

Scalia
Scalia
Roberts
Alito
Alito
Clarence Thomas
Clarence Thomas
Clarence Thomas
Clarence Thomas

"Where is the 9,000-foot cow?"/"What do you think about Satan?"/"What did James Madison think about video games?"

Justice Ginsburg lists the strangest questions asked last term at oral argument.

"From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon."

Are you kidding? This is why it should be on television?

You know, the fabulous 7th Circuit judge Richard A. Posner wrote a great chapter titled "What Am I? A Potted Plant?"

And I just saw a potted plant on television.

Now, the potted plant was scintillating compared to the live — that is, barely animated — speech by President Obama that preceded it. But the point is: We want the Supreme Court on TV!

Bring on the 9,000 cows! We're dying out here in TV-land!

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

Judge Posner says maybe it wouldn't have been so bad if FDR's Court-packing plan had passed.

"It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the 'living Constitution' on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals."

That's snazzily put, but it's really saying the same old thing about judicial restraint. Deference to legislatures in FDR's day served a liberal goal, and the activists were the conservatives. In later decades, judicial activism was mobilized for liberal ends. Over time, conservatives and liberals have used both judicial restraint and judicial activism to suit their ends.

The more fundamental question is whether we'd be better off if the judicial branch were subordinated to the political branches. I would think that conservatives and liberals alike — the full range across the political spectrum — benefit from a system of separated powers with 3 branches that are well-balanced and strong within their own spheres.

We can fight forever about exactly what the 3 spheres of power really are and what constitutesproper balance — when courts should act and when they should defer to the democratic branches — but I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts.

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook's opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.

Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court.

Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state? What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?

AND: See how this helps the Sotomayor nomination?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

But Easterbrook and Posner — "two top conservatives on the federal bench" — are on the same side.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor....

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position, and the apparent positions of Judges Posner and Easterbrook, is far more in the mainstream,” Tushnet said....

In a brief, unsigned opinion, [Sotomayor's 2d Circuit] panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

And that's exactly what the 7th Circuit said.

Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano.

"And then came the financial crash last September and the ensuing depression."

"These unanticipated and shocking events have exposed significant analytical weaknesses in core beliefs of conservative economists concerning the business cycle and the macroeconomy generally. Friedmanite monetarism and the efficient-market theory of finance have taken some sharp hits, and there is renewed respect for the macroeconomic thought of John Maynard Kenyes, a conservatives' bête noire."

Richard Posner on the dismal state of the conservative movement.