Category: Constitutional Law

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UCLA Law Review Vol. 62, Issue 1

Volume 62, Issue 1 (January 2015)
Articles

Intellectual Property Law Solutions to Tax Avoidance Andrew Blair-Stanek 2
Cooperative Federalism and Marijuana Regulation Erwin Chemerinsky, Jolene Forman, Allen Hopper & Sam Kamin 74
Offshoring the Army: Migrant Workers and the U.S. Military Darryl Li 124

 

Comments

Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights Tasha Hill 176
Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County Conner Johnston 236

 

 

 

Posner
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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

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FAN 42 (First Amendment News) Tribute to Al Bendich (1929-2015) — the ACLU lawyer who made the difference in the HOWL & Lenny Bruce cases

Al Bendich, April 5, 2013

Al Bendich, April 5, 2013

Some people make a difference in their lives; some people actually add to the bounty of freedom we call ours; and some people are so modest as to go quietly into the dark of their eternal night. Albert Bendich was one of those rare few. Sadly, Al died this past Monday.

Liberty in America is better off because of Al and what he did as a lawyer for the American Civil Liberties Union. He gave legal life to poetry and lawful voice to comedy . . . and more.

To know him was to like him — calm, mild mannered, soft spoken, and kind to a fault. But if you wanted to see sparks of passion — the ones that revealed the fire burning within him — all you had to do was start up a conversation about free speech. When it came to that, this lifetime defender of free expression became quite animated, but always with the composure of a learned lawyer who knew not only the law but also its history and the grand principles underlying it.

“I can’t think of anything more rewarding than fighting for matters of fundamental principles necessary to the preservation of democracy,” said Bendich in 2009. “The ACLU,” he added, “is absolutely necessary in that process. Without it we’d be going backward instead of trying to maintain our position and maybe inch a little bit forward.”

Al Bendich was a true inspiration to everyone in the ACLU community. . . From his time as staff counsel at the ACLU of Northern California, to his days as a teacher, and then a career in music and film with his colleague Saul Zaentz, Al’s passion for the Constitution and his country was a constant. — Abdi Soltani, Executive Director, ACLU of Northern California

The People vs Poetry 

Turn the clock back to 1957. On June 3rd of that year San Francisco police arrested Shig Murao, the manager of City Lights Bookstore, for selling HOWL and Other Poems to an undercover officer. Thereafter, City Lights’s publisher Lawrence Ferlinghetti was arrested for publishing HOWL. (See here and here for accounts of the arrest and what followed).  The case, People v. Ferlinghetti, went to trial.

The trio of defense counsel: the famed and flashy criminal defense lawyer Jake Ehrlich, the talented and knowledgeable public-interest lawyer Lawrence Speiser, and a recent Boalt Hall law graduate, Al Bendich (Speiser and Bendich were ACLU lawyers).

Here is how Nadine Strossen, the ACLU’s past President and a friend of Al’s, described what happened next:  “When Al Bendich worked on the landmark HOWL case, he was a very new lawyer, and the Supreme Court’s Roth decision, defining the obscenity exception to the First Amendment, was a very new decision. The HOWL case was one of first impression — the first actual application of Roth to an obscenity prosecution. Accordingly, Al’s brief in the case played a key role in shaping the law on point.”

“All free speech advocates,” she added, “are eternally indebted to Al for brilliantly managing to construe the Roth obscenity exception as narrowly as feasible, and persuasively explaining why it didn’t encompass HOWL. The brief had a palpable impact on the judge’s historic, speech-protective opinion, which in turn has had an ongoing positive impact on law and literature alike.”

Here is a passage from that brief:

Would there be any freedom of the press or speech if one must reduce his vocabularly to vapid and innocous euphemisms? An author should be real in treating his subject and be allowed to express his thoughts and ideas in his own words. Al Bendich (brief in People v. Ferlinghetti, 1957)

When it was all over, poetry prevailed.

Screen Shot 2015-01-05 at 10.56.30 PM

It was a new day in First Amendment America. HOWL could be sold in City Lights Bookstore and elsewhere. And all of this from a ruling by a San Francisco municipal court judge (Clayton W. Horn) who wrote a remarkable opinion that drew heavily on the work of a young ACLU lawyer named Al Bendich. Incredibly, it was the last time that a poem was the target of prosecution in an American court.

Even so, censors returned to the scene. Decades later, in 2005, Congress raised limits on the fines for indecency on the broadcast airwaves. That enabled the F.C.C. to charge up to $325,000 for every violation of its standards. And those standards barred reading HOWL on broadcast radio or television. “It seems like déjà vu all over again,” said Al.

Comedy on Trial

Imagine being busted for being a tad too colorful in telling jokes (many of them by way of social commentary) in a comedy club . . . in San Francisco . . . in the 1960s. Well, it happened to Lenny Bruce — no joke! The infamous comedian was hauled away from using indecent words during his performance at a club in North Beach in 1961 (see The Trials of Lenny Bruce).

The prosecutor was Hell bent on putting the “filthy” comedian behind bars for words spoken to adults at a joint called The Jazz Workshop where the likes of Thelonious Monk and others performed. No one was offended, no one complained, and no children were in the audience. Never mind. Bruce’s choice words violated sections 176 and 205 of the Municipal Police Code (unlawful presentation of an “obscene, indecent, immoral, or impure” performance) and section 311.6 of the California Penal Code (“lewd or obscene” words used in “any public place”). Now Lenny Bruce would have to face the music — and it wasn’t free-spirited jazz.

Al Bendich & Lenny Bruce at Bruce's 1961 SF obscenity trial

Al Bendich & Lenny Bruce at Bruce’s 1961 SF obscenity trial

Bruce had been looking around for a powerhouse mouthpiece, preferably someone who was “hip” to First Amendment law. Predictably, Al Bendich’s name came up. They met, they spoke, and soon enough Al agreed to defend the comedian on First Amendment grounds. So they went to trial.

The Judge? None other than Clayton Horn, the same judge who followed Bendich’s counsel and ruled in favor of Lawrence Ferlinghetti. Given the Horn-Bendich connection, things looked quite promising for Lenny. Ever the contrarian, Bruce demanded a jury trial. It was insanity. Still, Bendich preserved and thanks to several brilliant legal maneuvers was successful in securing a not guilty ruling.

photoHere is the kicker: the jury wanted to convict Bruce but ruled otherwise solely because of the precise jury instructions given to them by Judge Horn. Said one juror afterwards: “We hate this verdict, but under the instructions there was nothing we could do but give the ‘not guilty’ verdict.”

And who drafted those instructions? Yes, it was that same ACLU lawyer. Bendich had done it again; he had beaten back the forces of censorship. Now norm-breaking poetry and speak-your-mind comedy were safe in San Francisco.

* * * * 

There is, to be sure, more to Al Bendich’s life story than those two landmark First Amendment cases. There is, for example, his many years as counsel for Fantasy Records. And there is also his work on behalf of the constitutional rights of gays (see here, circa 1960), the poor, and the criminally accused.

My last conversation with Al Bendich was about the death penalty. His opposition was deep and passionate. His abiding sense of justice stemmed from multiple sources – his brilliant intellect; his commitment to the constitution and finally, his life experience.

He also spoke with his characteristic humility, but great pride, about his role in litigating one of the  most influential  cases establishing the unconstitutional conditions doctrine for recipients of public benefits, Parrish v. Civil Service Commission. In Parrish the California Supreme Court ruled in the 1960’s that predawn “bed raids” of recipients was a violation of their Fourth Amendment rights, and that the government could not condition continued receipt of public assistance on the forfeiture of constitutional rights. — Dorothy M. Ehrlich, Deputy Executive Director, national ACLU

Remember the First Amendment lawyers 

We think of First Amendment law as synonymous with judge-made law. We know the names of the judges — Holmes and Brandeis, Black and Brennan, etc. — who penned the famous opinions. But what of the lawyers who, like Al Bendich, argued those cases and advanced novel and persuasive arguments? Regrettably, too often they receive too little credit for the work they do. We must do more to remember them, to learn from them, and to share their life stories with new generations of lawyers eager to defend civil rights and civil liberties.

Now he stands tall in the memorial ranks of other First Amendment lawyers — the likes of everyone from Walter H. Pollak to Ephraim London to Stanley Fleishman to Bruce J. Ennis and beyond. They were, after all, the ones who helped to shape the law in ways to make the impossible possible. In the process they gave new and vibrant meaning to the First Amendment.

Farewell 

“Al Bendich contributed so much to the strong protection of free expression in the United States,” said Robert Corn-Revere, a noted First Amendment lawyer. “He had the vision and courage to defend speech that many people found to be unacceptable. I hope this sad occasion will at least move us to remember — and to celebrate — his accomplishments.”

With Al in 2013

With Al in 2013

On a personal note: Al was a dear friend. A year or so ago I was with him in Seattle with David Skover, whose law school hosted a conference at which Al spoke (see video here). And then there was the time when David and I spent a wondrous evening in San Francisco with Al and his wife Pam — chatting away for hours on everything from Alex Meiklejohn to Citizens United to Humanitarian Law ProjectDespite a few differences of views, Al picked up the tab (fancy wine and all). The sparkle in his eye, his gentle grin, his soft tone, and the way he spoke with such an admirable commitment to freedom — I remember it all as I write this.

In my mind’s eye I venture to City Lights Bookstore and see Al and Lawrence Ferlinghetti there — the lawyer and the poet — talking about the need for more insurgent poetry. And I imagine the tall poet leaning over to Al and saying: “Poetry is a radical presence constantly goading us.” Al smiles. “Ah yes, and remember,” he adds, “one of the reasons we have a First Amendment is to safeguard that radical presence.”

One final thought: If you believe in the work that Al Bendich did, if you believe in freedom for radical poets and ribald comics, and if you care about free speech in America, you can do something — exercise your First Amendment rights / help to protect the rights of others (even if you disagree with them) / and support the American Civil Liberties Union (go here to donate) or whatever group (liberal, conservative, or libertarian) that supports the principle of free speech for all.

Farewell Al.

Postscript: See also Michael Tigar, “Al Bendich, Mentor, Lawyer, Friend” (1-8-15)

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Speaker of the House

Constitutional scholars often point out that there is no requirement in Article I that the Speaker of the House must be a member of that body.  Today we saw some votes for non-members, such as Colin Powell, Senator Rand Paul, and Senator Jeff Sessions.

Some crazy issues arise in this context.  Can a sitting Senator serve as the Speaker?  I suppose that there is no constitutional prohibition on that, though it would be hard to reconcile with the structural principle of bicameralism. What about making the President the Speaker?

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Electoral College Reform

In reading the 2012 Republican Platform, I was surprised by this passage:

We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

I did not realize that the GOP even had a position on this.   The constitutional analysis of this question is actually quite complicated, though there is no indication that enough states will join this initiative to present a justiciable case (if it is justiciable).  While I understand the reasoning behind support for the Electoral College, I think the last line about “corruption in every ballot box” is absurd.

Posner
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The Promethean Posner – An Interview with the Judge’s Biographer

When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. Richard Posner (1990)

This is the eleventh and next-to-last  installment in the Posner on Posner series.

William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.  

Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:

  1. Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book) 
  2. Federal Judges Revealed (Oxford University Press, 2009)
  3. The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
  4. In the Opinion of the Court (University of Illinois Press, 1996)

Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”

William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)

Note: Some of the links below will open in Firefox or Chrome but not in Safari.

Question: How did you first come to know Richard Posner?

William Domnarski

William Domnarski

Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.

Question: You have written about Judge Posner before. Tell our readers a little bit about that.

Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.

It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. William Domnarski (1996)

Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?

Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.

Question: How long will your biography be?

Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.

Question: When is it scheduled for publication?

Domnarski: It should be available sometime during the Spring-Summer of 2015.

Question: What kind of response did you get from the people you were able to interview?

Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.

Question: Did you interview any sitting Justices?

Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.

Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?

Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]

Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?

Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.

Publisher’s Blurb

Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. 

THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY

Question: What was the biggest challenge in doing this biography?

Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.

Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.

Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?

Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.

The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.

The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.

Question:

  1. Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
  1. How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?

Domnarski:

  1. It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
  1. I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.

Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?

Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.

There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)

THE “BRASH YOUNG MAN” Read More

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On Second Thought . . .

In this season of forgiveness, I come to confess error.  A few months ago, I wrote some posts arguing that the procedure for drawing congressional districts in Arizona is constitutional.  After working through the materials, though, I have changed my mind and now think that the Supreme Court should (probably) reverse in Arizona Legislature v. Arizona Legislative Redistricting Commission, assuming that the Court reaches the merits.

The dispute (in case you don’t remember) involves Arizona’s adoption of a state constitutional amendment that vests redistricting power in the hands of an independent commission rather than the state legislature.  The Legislature sued claiming that Article One, Section Four, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .” precludes a state constitution from removing that power from the Legislature.  The Court’s precedents in this area hold that “the Legislature” in this context refers to the ordinary lawmaking process under a state constitution, which can involve a Governor’s veto or a referendum that overrides the Legislature’s proposed redistricting.  Proponents of the Arizona plan want to take this a step further to say that whatever the state constitution provides for redistricting satisfies the Federal Constitution so long as the Legislature has some role, which it does under the Arizona plan.

Why did I think the Arizona process was valid?  First, I said that to hold otherwise would leave the voters of a state with no remedy for partisan gerrymandering.  If their only recourse was to go to the Legislature that was the source of the problem, then that was no recourse.  I now see, though, that this answer was too simplistic.  A state could adopt a constitutional provision that says “congressional districts may not be drawn to favor one party over the other” or the equivalent language.  This would leave the districting in the hands of the Legislature as Article I requires, but would limit that authority in a way that can satisfy concerns about partisan gerrymanders.

The second thought that occurred to me after I wrote my posts is that the Court’s precedents under Article I, Section 4 essentially say that congressional districting should be treated just like any other state legislation.  Arizona, though, is not doing this.  It created a special process without the consent of the Legislature for drawing districts.  In that sense, the procedure before the Court really is unprecedented and stands on shaky ground.

The final point that occurred to me belatedly is that proponents are essentially arguing that “the Legislature” in Article One should be read as “legislative authority.”  Legislative authority could be conferred upon anyone by a state constitution, so then whatever the state constitution says on that score goes.  But there’s a problem with this logic.  In Article Four, Section Two, the Constitution uses the term “executive authority of the State” to describe the extradition of alleged criminals.  Thus, the Framers could have said “legislative authority,” in Article One, Section Four, but they instead chose the more specific term “the Legislature.”  I think that weighs in favor of the constitutional challenge.

While these three factors have (tentatively) changed my view on how the merits of the case should be addressed, one significant counterargument remains.  Article One, Section Four lets Congress override a state’s process for drawing congressional districts.  Accordingly, one could say that there is no judicial remedy for a state’s violation of that same provision–only Congress can act.  As Pauline Maier explained in her book on the ratification of the Constitution, folks paid a lot of attention to Article One, Section Four in 1787-1788.  This history needs to be examined more thoroughly to see whether disputes over whether “the Legislature” has acted should be deemed a political question.

Posner
0

Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” – David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

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The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

Safe Harbor Read More

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Original Jurisdiction Practice

Most original jurisdiction cases in the Supreme Court involve dull territorial disputes between states, but the lawsuit filed yesterday by Nebraska and Oklahoma against Colorado is anything but.  The claim is that Colorado’s legalization of marijuana violates federal law and is an “interstate nuisance,” which is some sort of new federalism theory.

Here’s my question.  If the Court dismisses this action as not falling within its original jurisdiction, can it do that with a simple order (like a certiorari denial), or is an actual opinion required?

Posner
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On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

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Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More