In this instance, Judge Posner lied

Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.

The Chief Justice ends his dissent in the gay marriage case with these words:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Obergefell v. Hodges,  576 U. S. ____ (2015), slip op. at p. 29 of dissent.

Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**

Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:

On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?

Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.

Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.

RGK

*H/T How Appealing.

**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

56 responses

  1. Anyone who has spent a lot of time around American Catholic knows that among many of them there is a deep seated hostility to gays, Fr. Martin SJ
    at America commented on this and his Facebook site has been receiving a good deal of hate mail. I am willing to give Roberts the benefit of the doubt and Thomas as well, Alioto I suspect, Scalia reminds me of some of the people I went to high school and college and law school with. I may be unfair to Scalia but he seems so preVatican II. On the other hand the tone of the dissents including some of Roberts’ gave red meat to the haters. It could have been avoided if more Justices knew prudence was a virtue.

  2. Lied? Or disagreed with your opinion? As I said in a comment to your previous post, de gustibus non es disputandum, but a lie is a knowing and intentional untruth. Judge Posner may have exaggerated, he may have engaged in hyperbole, he may have been intemperate, or he might have been right–the last paragraph of the Chief Justice’s opinion notwithstanding. But lying? I very much doubt it.

  3. I think Posner was wrong about “heartless”–it’s difficult to read the CJ’s opinion and conclude that he is indifferent or hostile to petitioners’ desire to get married.

    But when Posner says that “gratuitous interference in other people’s lives is bigotry”, I think he’s just refusing to accept Roberts’ apparent endorsement of the idea that there is a such thing as a non-bigoted reason for opposing same-sex marriage. In other words, Roberts could have said that the Constitution does not create a fundament right to same-sex marriage and left it at that. But he went on (perhaps feeling it was necessary to given, in his view, how far the majority went) to suggest that religious opponents of SSM are principled in their opposition. To Posner, as I read him in Slate and in his SSM opinion, there is no principled opposition. There is just bigotry dressed up, bound up, or perhaps simply hidden in, the garb of tradition and religious faith.

    That said, Posner would still say (if it’s ok to say what Posner would “say”) that Roberts was dead wrong even if Roberts had confined his dissent to what the Constitution does and does not require. To Posner, the moral and policy issues are not wholly distinct from the legal ones. But I suspect that Posner’s words in Slate are at least partially driven by what he would see as not only Robert’s refusal to call a spade a spade (i.e., to call bigotry, bigotry), but to suggest that the spade is no spade at all.

    Of course, bigotry is a loaded term. Perhaps it muddies up the debate when SSM proponents use it, at least in the courtroom, as it arguably implies that everyone who holds a “bigoted” view is a bigot. I don’t think Posner intends that implication, but one could read Roberts as admirably pushing back against it all the same.

  4. Judge Posner is who you ought to be (and hopefully, can be one day), but for a present deficit of courage. He doesn’t try to defend the indefensible. He doesn’t try to not censure our well-deserving judiciary. He bluntly speaks truth to power, which is why he is a national treasure. You can respectfully (or not) disagree, but calling him a “liar” is beyond the pale.

    If we had 1,000 Posners on the federal bench, I could say with confidence that our Constitution is in good hands.

    Did Posner lie? No. What he said was the unvarnished truth. CJ Roberts’s dissent was disingenuous and mean-spirited, and those of us who don’t have a vested interest in protecting the “reputation” of a judiciary that is already justifiably tarnished can say it and see it. You can disagree about his definition of “bigotry,” but he defined terms and showed how Roberts’s dissent fit within them.

    The dissents are all “weak.” Comically so. Politically motivated. Pandering to conservative Christian bigotry. Thomas and Scalia gain financial benefit from their dissents, but Roberts doesn’t and never has believed that the power of the judiciary is limited to declaring the law. We have a Bill of Rights because our forebears believed that individual rights should never be the subject of majority vote, and his plea to the contrary does violence to that concept.

    Roberts deserves opprobrium for that diatribe. Scalia and Thomas belong in the Opprobrium Hall of Shame. I guarantee that none of them will follow their reasoning when they are reminded of it as early as next month.

  5. Anonymous, Roberts does not believe enumerated rights are subject to a vote, which would be his justification for Citizens United and 2nd Amendment cases, he opposes new unenumerated rights. I disagree with him on all these issues. However, to invoke some the law is the law approach like the first Justice Roberts is indefensible and while we are at it there is a lot of very untraditional law in aPosner’s opinions on the election between tort and contract where implied due care terms are involved, and his pragmatism allows for a good deal of Constitutional creativity, though his conversion to Keynes was a great victory for solid economic policy and a real insult to Judge K.

  6. Posner may be one of the greats. And I won’t say that he’s not. I have several of his books on prominent display on the bookcase in my office. ( Makes the illuminati that traipse in from time to time think I’m starting).

    But here’s the thing. Anytime I attempt to read one of his books, I get maybe 1/3 of the way through. ( With the exception of Law and Literature which I finished). I have noticed an interesting pattern. Many of his books have chapters almost identical to other books he has written. He uses the same themes over and over again. Doesn’t detract from his brilliance, but it helps explain how a sitting federal judge has the time to write all those books and law review articles. Sorta like when you listen to a speech from a prominent politician at one location, and hear them speak again a few months later at another event. Almost word for word.

    Yet, I’ve been coming to your blog every morning and open and read this blog first thing every day. It’s always fresh and fun, and forces me to think. The only thing I can say is don’t sell yourself short.

    And please keep it coming!

    — by way of fair disclosure, I’m on the other side of the country and will never have an opportunity to appear before you in court. So no one can accuse me of being a shameless suck up or brown nose.

  7. Would you have felt better if Posner had said “clueless” or “intentionally blind”? Tossing a couple of bones to the other side (as in the passage you quote) does not make Roberts’ dissent any more gentle or any less offensive. And, I think he was a complete jackass (and did an injustice to the Court as an institution) in trying to denigrate the majority as “five lawyers ….”

  8. And under what conceivable rationale did unenumerated rights become relegated to second-class citizenship? Borkian analysis does violence to the Framers’ intent.

    All of the current occupants at One First Street have adopted the mantra that only some law is the law. They just disagree on which law should be followed.

    Pragmatism and rights under law do not mix, because under the former, the latter always loses. Posner’s most lasting contribution is in showing that judges routinely embrace the mantra of pragmatism, with a catastrophic impact on many vulnerable litigants.

    I’m not aware of that many egregious Posner opinions. As Judge K said, he is “a giant.” He seems to be close to “best in class.” Could you cite a few for my edification?

  9. Jon,

    No, I think he lied, and I have no answer to why he did so. You can say a lot of things about CJ Robert’s dissent. But it was neither heartless nor bigoted. Words have meaning.

    All the best.

    RGK

  10. Julian,

    Remembering Posner is writing for Slate, and Slate has particular orientation. Posner used “heartless” in the title and “biogotry” in the body of his essay. There is nothing that CJ Roberts wrote that was “heartless” or “bigoted.” Wrong, perhaps. Terribly wrong, perhaps.

    But CJ Robert’s dissent was neither heartless or bigoted. Judge Posner lied.

    All the best.

    RGK

  11. Anonymous,

    It is not beyond the pale to tell the truth. What is beyond the pale is to characterize CJ Roberts dissent as both heartless and bigoted. It was neither heartless or bigoted. Posner lied.

    All the best.

    RGK

  12. Norm,

    As I keep saying, words have meaning. Posner knows that and slandered CJ Robert’s intentionally. Why I don’t know, except, perhaps, Posner was (1) writing to please Slate readers or (2) fearful that CJ Robert’s dissent, gracious to gay people, might find some traction. All the best.

    RGK

  13. I think there is a case to be made for unenumerated rights out of Madison, I do not know if he was typical of the founders. Why Bork why not Black in Con birth control case and the scholarly reaction to Roe was much driven by people who did not see any way of separating the new from the old substantive due process except by who is charge. Indeed Phil Kurland and Herbert Wechsler among others raised that issue with regard to muchWarren Court jurisprudence.
    Do not have much of a library here at the home but one I recall teaching was on tort or contract damages in a bank negligence case and the idea of efficient breach did not strike a good cord with much of the contracts scholarship.While I would not want to argue what the mantra of the Nine is, you mantra seems to be Gilbert and Sullivan’s Lord Chancellor singing “that I my Lords embody the law.” Beyond your own assertion the evidence of your wisdom leaves me dubitante.

  14. Judge why was it slander rather that libel particularly since you say Posner was “writing?” I am not sure what harm was done to SCOTUS as an institution, the left tended to see five votes in the right’s pocket and the right gloated, last two days of Term the left has celebrated and the right is grumbling. Is the Court only dependent on the respect of the right?

  15. repentinglawyer,

    I was not speaking in legal terms. Libel is the correct legal term, and you are correct about that, of course.

    As for harm to the institution, CJ Roberts tried to leaven his opinion so that real people understood his dissent was not based upon any animus. By writing what Posner wrote–heartless–Posner fuels the rancorous division of our population. Instead of agreeing to disagree, Posner throws fuel on the fire–ie., don’t only disagree with CJ Roberts, consider him a heartless man too!

    All the best.

    RGK

  16. RGK: Sorry, but its hard to find anything BUT animus in Robert’s dissent, despite his throwing in a few grace notes on p. 29. And comparing Kennedy’s opinion to Dred Scott is, shall we say, beyond the pale. Deferring to “the voters” wasn’t possible in Loving and it isn’t possible in this case. Whether Roberts is “heartless” is not known except to Robert’s own heart, which Posner can’t know. Does his dissent “further the cause of bigotry”? Of course, since there is no other conceivable animation to Roberts’ and the other dissenters’ thinking. So you’re half right.

  17. “I say that gratuitous interference in other people’s lives is bigotry.” –Posner in Slate.

    Can there be any other interpretation?

  18. Judge I misquoted 2255 and was rebuked. In the spirit of Irish grudge I could not pass up on libel slander after 42 years of correcting students. I may just have lost faith that anything could prevent more rancorous division.

  19. MarcosD Dillinger who is much more polite than Posner in Slate also makes your point, to allow part of the community to act on an irrational belief in harm from SSM, a secret gay infection of the social structure, may not deserve an award for kindness, particularly when its much the same mind set as in Loving. I am not sure.

  20. In the first paragraphs of the piece, Judge Posner is referring to those who oppose same sex marriage as being motivated by bigotry, in the same vein as those who opposed interracial marriage. But he is referring in general to opponents of same sex marriage, and does not state that CJ Roberts into that group.

    And the point that Posner makes here is legally important, since a law motivated by pure animus could be held unconstitutional under Romer v. Evans.

    As to Judge Posner’s calling Roberts’ dissent heartless, this is, in the terms of defamation law, pure opinion. It is also, again, legally important. Posner frames it as being heartless because it ignores the historical discrimination and political powerlessness that gays have held. And those are factors that go into determining if discrimination against a group justifies heightened or strict scrutiny under equal protection jurisprudence.

    Judge Posner is, in using these words, making important legal arguments in a mainstream (if partisan) publication and doing so in a way accessible to a layperson. That’s not lying.

  21. Judge:
    If you are right then Judge Posner pandered to Slate’s Left-leaning readership in describing the Chief Justice’s dissent as “heartless.” I also sense sour grapes, i.e., that Judge Posner never misses an opportunity to critique the very Court whose membership he once coveted.
    Robert

  22. I had never heard of the Cherry Sisters before today. Never have I laughed so hard at a wikipedia article.

    Thank you for pointing me towards that rabbit hole.

  23. The problem in creating a bill of rights is in what to put in there, as there is always the danger that a crucial right will be ceded to the government by omission.

    Your Ninth Amendment is an “et cetera clause.” An antidote to the legal maxim, expressio unius est exclusio alterius. In a country without a bill of rights, your “rights” are those your government says you have. If we want to extend the benefit of marriage to same-sex couples, we have to do it by legislation. What you and CJ Roberts seem to be arguing, RL, is that there isn’t much difference in a country with a bill of rights.

    Perhaps we don’t need one.

    Section 26 of Canada’s Charter of Rights and Freedoms mimics your Ninth Amendment, and has been held to have much the same effect. Why do you say that it doesn’t mean what it says?

  24. Robert,

    I think your point is well taken. Whether his critiques of the Court are motivated (most of the time) by intellectual honesty (which I tend to believe, most of the time) or whether they are driven by a less pure motive, there is no doubt that Posner should have been on the Supreme Court.

    All the best.

    RGK

  25. “Five lawyers have closed the debate.” If a bill of rights creates a system of judicial supremacy, where every decision is coloured by the majority’s notion of what the law should be, then we may be better off without one.

    Five lawyers also closed the debate in your Citizens United decision. “Money is speech,” and you have to be obscenely wealthy to be heard. Why didn’t CJ Roberts object then? Because he was one of the five lawyers who got the law that he wanted. Your judges avail themselves of this power one year, and then whinge about it the next.

    It has been argued that to enact a bill of rights is to create a judicial dictatorship, and same-sex marriage is a great example. In Baehr v Lewin 852 P2d 44 (Hawaii 1993), the plaintiffs’ claims that they had the right to get married were summarily dismissed. And now, it is a fundamental right? I don’t see how the precedent “Judge Joe” relied on changed so dramatically between 1993 and 2005.

    Here, we have the power to remove judges for cause via the power of address. Constitution s 72. Not that they ever do, but if the High Court refused to review an appeal, the whole lot of them could be sacked. By contrast, your Supreme Court refuses to correct lower court errors all the time, and can do so without penalty. And this is actually authorised by your law? As a result, the only “rights” you Americans have are the ones a court consents to bestow upon you on a given day, and you have no way of knowing what your rights are until after you are penalised for exercising them. The idea that a judge is free to disregard precedent is anathema here, and with good reason. How do you Americans tolerate such outrageous judicial overreach?

    Here, those responsible for defining the scope of our rights have to stand for election. There is accountability.

    CJ Roberts’s dissent reads as hateful and mean-spirited. But his anger is not directed at homosexuals. It is more of a jeremiad against the majority, occasioned by an irrational and judge-centered system of jurisprudence that empowers men such as him to declare which rights are fundamental. Instead of adopting the clear and objective principle that you have all of your natural rights, and that government must show that it has a need to abridge them, judges invented a Chinese menu of fundamental rights. His is the bitter whinge of a man who lost and Posner’s, one of a boy who didn’t make the team.

    We’ll do it the hard way, and we’ll do the right thing eventually. But the thought of doing it your way would scare any sane man. I live in a lucky country, and we are especially lucky that we don’t have your constitution.

    Back to my regularly-scheduled vacation.🙂

  26. This is perhaps the most honest statement in Posner’s article: “And isn’t the history of constitutional law the history of Supreme Court justices, often by a narrow vote, inventing new rights and imposing them on the rest of the country?” The key phrases there are “inventing new rights” and “imposing them”. That sounds quite ‘progressive’, but it also can scare the hell out of you. Does the invention and imposing of “new rights” also include or involve tramping on ‘old rights’? I suppose it does . . . . . . .

  27. Peter H having turned a Justice into a former mayor of SanFrancisco who did not think much of NE and an eminent Duke law don into a bank robber, i am glad I did some good. You could have added an opinion can not be a lie unless it is not sincerely held. Posner was sincere. Cherry Sisters used to be in Prosser’s casebook. If you can find his book of judicial humor, it is not the funniest.

  28. Someone has hacked Judge Posner’s email.

    He could not have written the following!

    “Justice Anthony Kennedy’s majority opinion invalidating state laws against same-sex marriage is convincing, though I would have preferred to see it longer on facts and shorter on sonorous quotations from previous Supreme Court decisions. The four dissents strike me as very weak, though I’ll discuss just two of them, beginning with the chief justice’s. On the first page of his opinion, we read that “marriage ‘has existed for millennia and across civilizations,’ ” and “for all those millennia, across all those civilizations, ‘marriage’ referred to only one relationship: the union of a man and a woman.” That’s nonsense; polygamy—the union of one man with more than one woman (sometimes with hundreds of women)—has long been common in many civilizations (let’s not forget Utah) and remains so in much of the vast Muslim world. But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women”

    What? Only men could have more than one mate? A rich woman could not have 50 husbands? And if more women are homosexual than men does this not reduce the number of available women for straight men? Or vice versa? No, Judge Posner could not have written such crap. Res Ipsa Loquitur

  29. Pretty remarkable that you would insist that “words have meaning,” and claim that Posner defamed Roberts in the same sentence. (And no, I’m not piling on re the slander/libel distinction. The idea that this constitutes either is laughable. Do words have meaning?)

  30. But Posner could be right–Roberts could be heartless–if in fact there is no principle other than non-religious anti-gay sentiment backing Roberts’s dissent. And what’s to say there’s not? The principle Barrett cites is surely not correct (otherwise Shelby County is impossible to explain). And Roberts doesn’t make any sort of stand on the basis of a procreation-oriented, religiously infused view, like Alito does. So we’re left with a secular sentiment divorced from “judicial humility” directly opposed to circumstances that for a great many kindle empathy. That sort of attitude towards gay people can rightly be called heartless.

  31. And to reply to myself to clarify that NWS my comment I think the Supreme Court majority arrived at the correct decision.

  32. Fifteen years ago, or so, I would have been applauding the dissenters but evolution of thought and association with colleagues who had same sex partners, allowed me to discern that I would have been wrong.

  33. That just means you have both an open mind and an open heart. We need more of that in this world!

  34. Anonymous,

    I agree about the open mind and open heart principle. But that sentiment can easily be discerned in Chief Justice Robert’s dissent. Indeed, he seems solicitious of the gay rights cause as a policy matter.

    But, the creation of rights out of “emanations from a penumbra” seem a weak basis for the recognition of a right that the Founders and the drafters of the 14th Amendment would have found quite unbelievable. Roberts is neither heartless nor bigoted for pointing this out. Posner lied in suggesting otherwise.

    All the best.

    RGK

  35. Judge Kopf,

    You keep saying that Roberts is the smartest man in the room. If this is a representative example of his rapier-like wit and prudent judgment, I doubt that he could last three rounds with Honey BooBoo.

    There are times when our judges should just STFU. No one would have thought any less of Judge Sutton if he had simply affirmed the district court decisions in his Circuit. Baker v. Nelson had lost all of its potency in the past thirty years, and everyone knew it. A summary affirmance is a judicial fiat, deserving of no precedential effect.

    What Roberts should have done is push for a per curiam opinion without oral argument, telling his colleagues that he would be the sixth vote. If Scalia wanted to preach to his choir, he couldn’t be stopped, but that blithering idiot has all the impulse-control of Chris Christie at a Las Vegas buffet. It would have sent a clear message that the debate was settled at the lower court level, and there was no need to waste valuable Court time on it.

    What Roberts DID is irreparably undermine the legitimacy of the Court, and that was by telling the unvarnished truth. The only “rights” we have are the ones that five lawyers in robes say we have. We are ruled by men, and not of our own choosing. As Scalia adds, ours doesn’t even qualify as a democracy, to say nothing of a democratic republic. If Judge Posner wanted to destroy the Court, he could hardly do better than Roberts did this week.

    The Court’s fundamental rights jurisprudence has always looked like a jigsaw puzzle with a quarter of the pieces gone because our judges have never possessed the requisite percipience to address the right question: What IS the difference between a fundamental and non-fundamental right?

    From a theoretical perspective, there is none. William Penn’s right to not be forced to remove his hat in acknowledgement of an official’s (presumed) superiority and the right to buy contraceptives have never been penumbral or non-fundamental. I can’t even begin to think of a right which is not fundamental. You either have rights or you cede them, and there is no process by which you have ceded the non-fundamental rights that you had when you agreed to become a member of society. Courts haven’t tried to square that circle.

    Especially in light of Scalia’s opinion in the EPA case, the only way you could make the Court look any more like a clown car is to appoint Donald Trump to the next open seat.

  36. It’s hard to believe–but your post proves it true–that an experienced, long-time federal judge can’t tell the difference between an opinion he doesn’t share and a “vicious lie” (or worse, knows full well the difference but ignores it for the sake of a gaudy, extravagant polemic).

  37. peters,

    I am sorry you feel that way. I still think that I am right. But, you hit on something important.

    My perceptions may be amiss and I value those like you who take me to task for my mistakes. That is one of the purposes of this blog; that is, to allow everyone to see a federal judge struggling with, and often erring about, the legal issues of the day. The mystique that surrounds the federal judiciary is not healthy, but transparency and the resulting criticism that we receive when we are transparent is healthy. Thank you for taking the time to engage. I truly appreciate it.

    All the best.

    RGK

  38. Lot of hostility going on with very discussion of the actual issue that separates RGK and Roberts from Kennedy and Posner. I see two- 1. the need for the Supreme Court to stay out of political questions and 2. the meaning of the 14th Amendment- whether it can expand beyond the beliefs of those that wrote it by having it rest on vague sounding values like “personal autonomy.” Posner did lie, I agree. He knows better. Most commenters on this blog apparently don’t. So much for our law schools. Kennedy took a leap, he wrote a Dredd Scott/Roe etc type of opinion, an opinion that the court did not need to write and which is easily picked apart by a legal mind (of which there are apparently very few that comment on this blog). But for all that, my money is on this opinion never being overturned and being taught in law schools as one of the greats because it feels good and let’s face it, most law professors assigned to constitutional law teach what they like rather than what they should.

    Let’s agree on this much: Obergefell is terribly written. It lacks even something so simple as a standard of review. If it and Windsor become watermarks, if students learn from them how to understand the constitution, then the rule of law in this country is going to be greatly undermined.

  39. I wonder how you feel about Loving and Griswold? Are they also to be assigned to share the stink with Dred Scott and Obergefell? Be careful with your broad brush. Same sex marriage wasn’t contemplated when the 14th was adopted, but neither was interracial marriage or contraception (or women having the temerity to vote for that matter). So clearly jurisprudence has and will continue to “expand beyond the beliefs of those that wrote” the Constitution. What law school shouldn’t teach that?

  40. MarcosD,

    Griswold is a bad joke-akin to pulling a magic bird out your ass.

    Loving was perfectly consistent with the text of the 14th Amendment.

    All the best.

    RGK

  41. Judge, this isn’t the first time Posner has played fast and loose with the truth (let alone the facts). Take his unhinged (attempted) trashing of Scalia and Garner’s book,,not to mention Ed Whelan, a few years back. Posner is increasingly angry — about something. Textualism and religion seem to be his buttons. Toxoplasmosis can’t be rule out.

  42. Griswold is the only rational way to read the Ninth Amendment.

    Can you identify a non-fundamental right? Didn’t think so. If you have a right to have sex, don’t you also have the right to buy contraceptives?

  43. Incisive questions. Don’t expect a cogent reply from this quarter, though. Sadly, it seems that the Judge is far more interested in whitewashing his profession’s tainted reputation than he is in doing something to rehabilitate it.

  44. Richard, I’ll take a 7-2 bad joke any day! Are you going to seriously suggest that there are no “penumbras” and “emanations” around Constitutional protections (cit. Douglas)? If you don’t like Griswold, the magic birds and asses in Lawrence v. Texas must make you quite queasy!

  45. MarcosD,You are right. I am queasy about Lawrence, although had I been on the Court I would have concurred in the judgment of the Court. All the best.

    RGK

  46. Anonymous,

    I love snark when directed at me and sometimes when directed at other federal judges. But, and this is from my heart, I don’t think you understand how hard many (but not all) federal trial judges work to state the facts of their cases honestly. All the best.

    RGK

  47. workingdogbc,

    There is much truth to your statement. His biography will be coming out relatively soon published by the Oxford University Press and written by a tough lawyer and a great writer (William Domnarski). I wonder how that bio will handle Posner’s sharp tongue as the sun sets on Posner’s career. All the best.

    RGK

  48. Firstly. Judge, Douglas did not write the only opinion, Harlan’s opinion from the earlier case is a masterpiece, secondly Robert’s did the same thing in his confirmation hearing to derive a right to privacy and threw in the Third, but you probably do not like the Legal Tender Case either since the structure of Douglas’s opinion is much like Strong’s.

  49. Roberts is the best judicial writer I’ve ever read. His first ACA opinion is a masterpiece of clarity (unlike most other judicial opinions). I strongly urged my adult children to read it, because you don’t have to be a lawyer to understand it- and lest there be any mistake, that’s a compliment.
    In my view, his ACA opinions (both) and his gay marriage opinion are entirely consistent. What we have is a constitutional scholar who believes in his soul that judges should defer to the legislature whenever possible, and should never, ever abort public debate based on the constitution unless absolutely necessary. He applies these principles regardless of his personal views. I only wish that there were more like him.

  50. Words do have meaning, and perhaps the main problem of this post is the usage of the word “lie”? If I weren’t an avid reader of your blog, I’d assume you that the post was merely click-bait. Posner might have been overly harsh, but he was not unfair. His characterization of Roberts as heartless was no more a lie than your characterization of Posner as a liar.

    Posner’s tone was on-par with Scalia’s dissent and even parts of Roberts’ dissent. Posner points at a main flaw of Roberts’ position, namely Roberts’ historically-inaccurate proclamations about marriage’s consistency. From there springs the deeper flaw in Roberts’ dissent — it comes across as another sermon of “hate the sin; love the sinner.” When the “sin” here is a largely immutable trait, hating the sin and hating the sinner appear the same. I don’t believe that CJ Roberts is a bigot. Still, his dissent comes across as bigoted, much like the well-meaning (but still racist) statements of an elderly relative.

    It is silly to suggest that Roberts’ dissent portrays some sadness that he could not join the majority. He easily could have concurred in the judgment under some new found rationale (Perhaps the denial of marriage licenses was a tax?) or even no rationale. He chose not to do so.

    The heartlessness of the dissent is its tone-deaf denial of the practical effects of its proposed approach. If we are to buy into Roberts’ arguments about political processes, then we must accept that, at best, he is accepting that hundreds of thousands of individuals must spend a decade or two going over hurdles before securing their right of what everyone else already has. The distinguish Loving and strap the decision to Lochner’s anchor ring hollow. Likewise, the attempts to portray a fifty-state solution as viable for the gay/lesbian population is ridiculous, as state reactions to the ruling show. Roberts knows the right result, and he refuses to endorse it. That’s the heartlessness in Roberts’ approach, and tacking on a saccharine final paragraph doesn’t change it.

  51. eh,

    On this we disagree. Judge Posner is characterizing the character of another human being without a penny’s worth of evidence that the characterization is accurate and much evidence that it is not accurate. That, to me, is a lie.

    The foregoing said, I honestly think you confuse the substance of the arguments laid out the SSM case with the motivations of the writers. Posner makes the same mistake. I have authorized the killing of men, but I’m not a heartless killer. Do you get my point?

    I appreciate your very thoughtful comment. What’s more, I thank you for taking the time to write.

    All the best.

    RGK

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