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Influential judge and UChicago lecturer trashes Constitution, calls Scalia tributes ‘absurd’

Say what you will about Richard Posner – you know exactly where he stands.

The 7th U.S. Circuit Court of Appeals judge and law lecturer at the University of Chicago unleashed a sweeping broadside against the Constitution and even such cherished amendments as the 14th (due process, equal protection, citizenship for ex-slaves) in a conversation with fellow Slate legal writers.

Lamenting that law schools aren’t hiring as many lawyers with practical experience as he’d like, Posner takes his preference for pragmatism and unmoors it from any principle:

… I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation … Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21stcentury. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.

Contempt for basic American freedoms seems to be a common theme in the Posner family: Richard’s son Eric, a full law professor at UChicago, has praised campus speech codes and authoritarian professors on the grounds that college students “must be protected like children.”


In the same Slate conversation, building off his contempt for law profs who are “too respectful of the Supreme Court,” the elder Posner calls the tributes to the late Justice Antonin Scalia “absurd,” particularly those from fellow Justice Elena Kagan and Harvard Law Dean Martha Minow.

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Commenting on this “posthumous swipe” against one of the most influential justices in history, George Mason University Law Prof. David Bernstein calls Posner’s remarks “revolting“:

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.

Bernstein isn’t convinced by Posner’s backtracking in The Wall Street Journal, where the judge said he was actually criticizing “the hypocrisy of those liberals who are praising Scalia so extravagantly,” not Scalia himself:

First, he talks about how there haven’t been any stars on the Supreme Court since [Robert] Jackson [unlike Posner, a diehard defender of procedural due process]. 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. …

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 even Richard Posner himself called Scalia “the most influential justice of the last quarter-century” before he decided that Scalia was an overrated hack, Bernstein notes.

If you’re a student in Posner’s class (next term’s schedule isn’t up yet), ask him about this blowback and his own flip-flop on Scalia, and let us know what he says. (We pay for video!)

Read Posner’s post and Bernstein’s retort.

h/t Washington Times

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About the Author
Associate Editor
Greg Piper served as associate editor of The College Fix from 2014 to 2021.