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Friday, August 29, 2014

Another SCOTUS counter-factual: Justice Posner?

Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).

But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?

More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.

Posted by Howard Wasserman on August 29, 2014 at 08:42 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Posner was never seriously considered for the Supreme Court. And it's questionable whether he can be accurately described as a conservative these days. http://www.volokh.com/2012/07/08/goofiness-is-in-the-eye-of-the-beholder/

Posted by: David Bernstein | Aug 29, 2014 12:31:43 PM

We don't know what cases the Court would have granted cert on if the Justices had been different. So the difficulty is not just predicting merits votes, but predicting which cases the Court would have heard in the first place.

Posted by: Orin Kerr | Aug 29, 2014 4:05:47 PM

I think you mean the federal ban in Gonzales v. Carhart. The Nebraska ban was struck down.

Posted by: JG | Aug 30, 2014 8:31:56 AM

Orin, agreed. And the elephant, of course, is how being put on SCOTUS would have changed Posner.

Posted by: Barry | Aug 31, 2014 12:51:57 PM


"assuming Posner has become more iconoclastic lover the years"?!?

I don't know -- Sex and Reason was pretty iconoclastic and that was many years ago!

Posted by: D.Schleicher | Aug 31, 2014 1:09:13 PM

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