Richard A. Posner, judge on the United States Court of Appeals for the Seventh Circuit, University of Chicago Law School lecturer, and many-time HUP author, has long been an influential voice in American legal theory, particularly with respect to economics. Though known for being thoroughly Chicago School in ideology, his 2008 book A Failure of Capitalism was a surprise to many who’d considered Posner unlikely to deliver a book described as “a roundhouse punch to the proposition that markets are self-correcting.” But, then again, people are used to surprises from Posner. Writing in his Wall Street Journal Ideas Market blog just last month, Christopher Shea described how Posner “continues to amaze”:
I don’t know at what point he gave up on the idea of being nominated to the Supreme Court, but he opted instead to flout all of the conventional wisdom about what a federal appeals-court judge should do (and achieve near-total professional freedom in the process): He blogs, he opines, he dissects the reaction of banks, regulators and politicians to the financial crisis in books—and he takes part, as if he were just another pundit, in a Slate “Breakfast Table” on the latest Supreme Court opinions.
Indeed, in his June 27th “Breakfast Table” post, Posner offers fairly direct remarks on Supreme Court Justice Antonin Scalia’s dissenting opinion in Arizona v. United States, the high-profile dispute over the constitutionality of Arizona’s aggressive stance towards undocumented immigrants. Posner quotes several of Scalia’s jabs at the Obama administration before deeming them “fighting words.”
The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.
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In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona's efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.
Then, this week, in a conversation with NPR legal correspondent Nina Totenberg, Posner acknowledged that he has become less conservative since the Republican Party “started becoming goofy.” Amid much speculation that the Supreme Court’s deliberations on health care reform were intentionally leaked so as to discredit Chief Justice John Roberts, who went against casting and expectations by siding with the Court’s liberal wing in upholding the individual mandate, Posner told Totenberg that “right-wingers who are blasting Roberts are making a very serious mistake.”
Because if you put [yourself] in his position ... what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? 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.
It’s impossible to know how accurately this projects the evolution of the Chief Justice’s thinking, but one can’t help but wonder if perhaps it traces Posner’s own.
