Posner On the Politicized Supremes

If you are sick of judicial speculation, and ready to move on to whatever fresh hell the High Court might or might not have in store for us tomorrow, make an exception to your eschewal of judge-talk to read Richard Posner’s remarkable analysis for Slate of Antonin Scalia’s outburst on immigration the other day.

Posner, as you may know, is generally regarded even by people who disagree with him often as one of America’s great legal thinkers. I remember my Property professor in law school way back in the late 1970s practically burning incense before the economic-analysis-of-the-law tomes Posner wrote in his pre-judicial days at the University of Chicago. He was appointed to the 7th Circuit Court of Appeals by none other than Ronald Reagan shortly thereafter, and has been there ever since, where he has usually enlightened and sometimes maddened just about everybody with his frequent public writings.

So it’s of more than passing interest that Posner so effortlessly shreds Justice Scalia’s impassioned tirade about the horrible burdens the Obama administration and the Court’s own majority is willing to place on Arizona in its decision on S.B. 1070 earlier this week:

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.

Posner goes on in this calm vein at some length, batting down every right-wing smear aimed at the moral character and fiscal impact of undocumented immigrants. But I was most impressed by his observation at the very beginning of his piece about the broader significance of Scalia’s outburst, and others like it:

Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be? Good or bad, it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities, such as presiding at mock trials of fictional and historical figures (was Hamlet temporarily insane when he killed Polonius? Should George Custer be posthumously court-martialed for blowing the Battle of the Little Big Horn?). My own view, expressed much better by professor Lawrence Douglas of Amherst, is that such activities give a mistaken impression of what trials are good for. But I would give Justice Sotomayor a pass for appearing on Sesame Street to adjudicate a dispute between two stuffed animals.

The general, cynical assumption of many “sophisticated” lay people is that judges have always been political whores who do what their constituencies–or the pols that appointed them–want. I’d say that’s been true at some points in American history, and calumny in others. Posner himself is a pretty good living testimony to the ability of a jurist to transcend politics and make everyone angry (e.g., myself, most recently in his earlier Slate piece on the juvenile life-without-parole decision) from time to time. But he is not exactly inspiring confidence that the Supremes are going to rise to the non-political occasion tomorrow morning at 10:00 EDT.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.