I wrote here about Judge Richard Posner’s book review of Reading Law: The Interpretation of Legal Texts by Justice Antonin Scalia and Bryan Garner. In that post, I linked to Ed Whelan’s five part take down of Posner’s review, which revealed it to be a rather crude hatchet job.
Posner himself was, if anything, even more revealing during an interview earlier this summer conducted by NPR’s Nina Totenberg. According to Totenberg, Posner said that he’s “become less conservative since the Republican Party started becoming goofy.”
Taken at face value, this amounts to an admission that Posner no longer bases his positions entirely on the merits, but instead is influenced by his regard (or lack thereof) for other people who have taken positions on the issues in question. That’s an astonishing admission by any public intellectual, much less one of Posner’s stature.
Posner’s statement to Totenberg can’t be taken fully at face value because it is incoherent. If Posner finds Republicans “goofy” by virtue of having taken conservative positions, then Posner must already have become less conservative for other reasons. Thus, he cannot blame Republican “goofiness” for his movement away from conservatism.
Posner may have meant to say that Republican goofiness resides in new positions Republicans have taken, positions that in his view differ from or extend beyond those of Ronald Reagan and Milton Friedman, whom regards as the pillars of conservatism. If that’s the case, however, then Posner has not “become less conservative” because he rejects what he deems non-Reagan, non-Friedman views.
But in discussing Chief Justice Roberts, Posner shows that, in fact, he does allow others to do some of his thinking for him:
I think these 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.
What Roberts is “supposed to do” is decide cases on their merit, not based on his personal opinion of those who take this or that position. And this, as far as we can tell, is what Roberts does. Otherwise, he probably would not have voted to uphold the Obamacare mandate, given the abuse (including claims that he lied to Congress when he testified he would decide cases non-ideologically) he has taken from liberals for his past decisions, and given an attack on the Roberts Court by President Obama himself.
It is bad enough for Posner to admit that he is no longer capable of deciding issues based solely on his independent judgment of the merits. He should not compound the offense by claiming that the Chief Justice of the United States also has abdicated his intellectual responsibility.