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Posner says Supreme Court is 'awful,' top two justices are OK but not great

Photo of Judge Richard A. Posner from University of Chicago.

Updated: Circuit Judge Richard Posner says he’s writing a new book called Strengths and Weaknesses of the Legal System, and one of the weaknesses is the U.S. Supreme Court.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, criticized the high court at a recent bookstore appearance for a new Posner biography written by William Domnarski, Above the Law reports. Here is what Posner said:

The new book is “almost entirely about the federal judiciary…. So I have about 10 pages on the strengths and about 320 pages on the weaknesses. I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”

Above the Law reviewed the C-SPAN video of Posner’s remarks and published his Supreme Court criticisms.

Posner said “probably only a couple of the justices,” namely Ruth Bader Ginsburg and Stephen G. Breyer, “are qualified. They’re OK, they’re not great.” Those justices’ opinions, he said, are “readable, and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions.”

The “most tedious opinion I’ve ever read,” Posner said, was the dissent by Justice Samuel A. Alito Jr. in Whole Woman’s Health v. Hellerstedt, which overturned Texas abortion-clinic regulations. The 40-page dissent said the case should have been dismissed on the basis of res judicata because the plaintiff challenging the law had filed a previous case that was dismissed. Res judicata, Posner said, is a common law rule that is “not part of the Constitution or anything, and this is an important issue we’re trying to get settled—so why should you fuss with res judicata, especially for 40 pages?”

Posner said a weak federal judiciary can be blamed on appointing politicians who are more interested in politics rather than in good judges. He also said appellate and Supreme Court law clerks—who are typically very good and smart—are part of the problem.

“So the politicians figure,” Posner said, “well, we’re appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn’t have much experience—never been in a trial courtroom, for example—but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them…. That’s a very serious deficiency in our system, and there are zillions more.”

Posner went on to say that appellate judges should have trial experience, and they could get it—as he does—by sometimes sitting by designation as trial judges.

Posner later qualified his comments in a message to Above the Law.

Posner said his comment about only two justices being “qualified” wasn’t meant to suggest that the justices lack the necessary “paper credentials.”

His use of the word “qualified,” Posner said, “meant good enough to be a Supreme Court justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”

Posner also said he didn’t mean to suggest that only former trial judges should be appointed to the Supreme Court, but rather that all appellate judges should have tried cases, or should get experience by sitting by designation.

“I know I said some harsh things in my bookstore talk about the Supreme Court and the justices,” Posner added in his statement to Above the Law. “I stand by all that. I think the court is at a nadir. I don’t think it’s well-managed, and I don’t think the justices are doing a good job. Of course that is not a case that I can make in a bookstore talk. I am writing a book about the federal judiciary which contains a chapter of more than one hundred pages setting forth my views of the current court and my grounds for those views. So stay tuned.”

Updated on Oct. 28 to include Posner’s statement to Above the Law.