Judge Richard Posner Unwittingly Makes an Argument for Electing Federal Judges

Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals made legal-outrage history a few days ago with a concurring opinion he wrote in Hively v. Ivy Tech Community College. The Chicago-based appellate court ruled in the case that Title VII of the federal 1964 Civil Rights Act, which forbids discrimination in employment on the basis of sex, also forbids discrimination on the basis of sexual orientation. The ruling allowed a woman who claimed she had been fired from her community-college job because she was a lesbian to proceed with a lawsuit under Title VII, which, unlike many employment-discrimination laws, allows parties who prove injury to collect triple damages plus attorney’s fees.

Sexual orientation, of course, isn’t mentioned in Title VII, and Posner agreed that Congress, when it passed Title VII some 53 years ago, hadn’t intended to include sexual orientation as a protected category even under the most liberal definition of sex discrimination. Posner’s argument was essentially: Times have changed, and Congress just hasn’t kept up with the times. He wrote: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” In other words, we judges ought to stop pretending that we’re simply interpreting the law; we’re amending the law to confer a potential triple-damage bonanza on this woman because Congress either hasn’t or won’t.

Law professor and USA Today columnist Glenn Reynolds wryly noted that Posner had voiced a “new conception of the judicial mission” and suggested that this might be a good reason for federal judges to have to stand for re-election every few years instead of being appointed for life as they are currently.

Actually, though, Posner’s opinion was vintage Richard Posner, or at least recent vintage Richard Posner. In June 2016, he wrote a piece for Slate arguing that judges—including and maybe especially Supreme Court justices—were entitled to update the U.S. Constitution whenever they felt like it: “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.” He opined that judges and lawyers shouldn’t even bother studying the Constitution and its history.

Then there was the Posner of 2014, trying—this time unsuccessfully—to persuade his fellow 7th Circuit judges to rehear en banc a three-judge decision upholding a Wisconsin voter ID law. Posner spent 30 pages blasting other members of the circuit for actually believing that the Wisconsin legislature had a valid purpose in passing the law—discouraging voter fraud—instead of what Posner believed to be the legislature’s real motive: tilting elections toward Republicans by squelching minority votes. Photo-ID laws such as Wisconsin’s are “highly correlated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly blacks.” Around the same time he shocked legal scholars by augmenting one of his opinions with his own Internet research on the drugs a prisoner claimed a prison doctor had denied him—a violation of the time-honored rule that appellate judges are supposed to decide cases strictly on the court records in front of them and not go foraging for evidence on their own.

In 2012 Posner took a potshot at Justice Antonin Scalia, who had dissented from a Supreme Court decision invalidating parts of an Arizona law requiring stricter enforcement of federal immigration laws than the Obama administration was willing to permit. “Illegal immigration is a campaign issue,” Posner fumed in Slate. “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads.” A week or so later he denounced Republicans in general as a “bunch of crackpots” and a “crowd of lunatics.”

All of this is strange for those of us with long enough memories. Posner was one of Ronald Reagan’s very first appointments to the federal judiciary, in 1981, and his presence on the 7th Circuit promised to help turn around a tidal wave of liberal rulings from the federal courts, whose sheer number of judgeships had been significantly expanded under Jimmy Carter. Posner, then a law professor at the University of Chicago (where he still holds a part-time position), brought a refreshing economics perspective to his legal decisions, as he was an admirer of onetime University of Chicago economist Milton Friedman. As a reporter for a legal newspaper I interviewed Posner shortly after his appointment and found him to be great fun. He had majored in English at Yale—back before English became a subsidiary of gender studies—and his court opinions were witty, erudite, and elegantly written. Sure, I’d later read articles by him urging, say, a free market in buying and selling children. But they seemed merely eccentric.

Posner has been called the smartest sitting federal appeals judge (although I’d personally give that award to another 1980s Reagan appointee, Alex Kozinski), so maybe after 36 years on the bench, his big-brain reputation has gone to his big head, and he feels compelled to second-guess each member of each branch of government. Maybe there’s something to Reynolds’s proposal that federal judges be obliged to persuade us on a regular basis that they still ought to be federal judges.

This post originally appeared on Weekly Standard

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