Federal appellate judge Richard Posner’s decision to retire should surprise no one who’s read his latest book. Posner, of Chicago’s Seventh Circuit, is pushing 80, which he suggests is when judges should retire, and in The Federal Judiciary: Strengths and Weaknesses, he shows little concern over alienating his superiors. The job of appellate judges involves writing opinions that the Supreme Court, should it review them, will admire and concur with, but Posner sounds beyond caring. He devotes half his book to the court and vastly more space to its weaknesses than its strengths. “I think the Court is at a nadir,” he writes. “I don’t think it’s well managed and I don’t think the Justices are doing a good job.” He concedes that it’s “impertinent” to say so.
“I’d like to see his encomiasts, liberal or conservative,” Posner goes on, “defend that position and the moral outlook that lay behind it.” Perhaps, he dryly suggests, Scalia, as a devout Catholic, was content to believe an innocent man put to death would receive “divine clemency.”
Five years ago, writing the first of several columns on the enmity between Posner and Scalia (for others, see below), I said that posterity was likely to remember Posner, though outranked by Scalia, “as the more important jurist; his opinions are anthologized in law school casebooks more frequently than the opinions of any other living judge on any court.” I suspect Posner believes that he, not Scalia, should be remembered as the verbal giant: after all, he’s written close to 40 books (the number depends on how you count various editions of some). And they’re consequential books. One of them, Sex and Reason, published in 1992, won a literary award in a competition I helped judge, being about sex without making sex embarrassing and law without making sex a bore.
