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Posner on Academics, SCOTUS, and the Constitution: They All Suck

By Casey C. Sullivan, Esq. on June 30, 2016 | Last updated on March 21, 2019

Seventh Circuit Judge Richard Posner is one of the few appellate judges to have become a household name -- if your household includes a legal professional or two, that is. And part of what makes Judge Posner so well-known is that he is rarely shy about expressing his opinions. His condemnation of the Bluebook, for example, has made many a law student's heart sing.

And the Bluebook isn't the only thing Posner has a problem with. In a recent post on Slate, the judge took aim at legal academics, the Supreme Court, and even the Constitution.

Posner vs. the Refugees From the Anthro Dept.

It's not surprising that the Supreme Court often ignores law professors, Judge Posner wrote in Slate last Friday. His comments came as part of Slate's "Supreme Court Breakfast Table," a regular back-and-forth on the day's news held between journalists, academics, and (apparently) appellate judges. The topic was "the academy is out of its depth," and Posner's comments came in response to Akhil Reed Amar, a Yale law professor.

The Supreme Court likely doesn't see law professors as capable of giving advice on administrative issues, such as whether to report cert votes, Posner explained, because so many law professors lack legal experience. Instead of joining the academy after years of practice, law professors are increasingly:

refugees from other disciplines -- the graduate students in classics, and history, and anthropology, and so on who upon discovering there were very few well-paying positions in such fields nowadays decided to go to law school and afterward had no time to practice law before getting a law-teaching job.

Why should the Supreme Court turn someone with more background in the construction of gender in early Renaissance midwifery, for example, than they do in practical law?

Posner vs. the Supreme Court

But it's not like Posner was praising the Supreme Court, either. The Court, he claimed, is at its nadir:

The justices are far too uniform in background, and I don't think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd.

But please, let us know how you really feel!

Posner vs. the Constitution

While reasonable minds might be able to disagree over the quality of the Supreme Court, Posner ends his piece with something that pretty much everyone would find surprising. The Constitution, that old, worthless rag that's the foundation of our democracy, doesn't merit even seconds of study:

And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries -- well, just a little more than two centuries, and of course less for many of the amendments).

That's a pretty surprising statement from a federal appellate judge. But Posner at least explains his reasoning, even if you might not agree:

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.

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