The Federal Judiciary: Strengths and Weaknesses

Posner (Divergent Paths: The Academy and the Judiciary), a sitting federal judge and former law-school professor, argues that the federal judiciary is excessively backward-looking and handicapped by outdated practices and cultural norms. The first section of the book focuses on the Supreme Court. The balance is devoted to the federal appeals courts, district courts, and civil litigation. The villain of the piece is Antonin Scalia, the U.S. Supreme Court’s leading proponent of originalism up to his death in 2016. Originalism, as Posner defines it, refers to relying on the strict letter of the law—i.e., the U.S. Constitution—with some flexibility allowed for “contextual factors.” Posner dismisses originalism as “nonsense” and rips Scalia’s legal opinions to shreds. In Posner’s view, the premise that Supreme Court justices base their decisions on legal analysis, precedents, and authoritative sources are “rubbish.” Instead, he argues, decisions are based on the justices’ own temperaments, ideologies, and experiences. Posner claims to stop short of saying constitutional law is a “complete fabrication,” but he’s darn close to the line. He is persuasive, though his presentation is at times marred by his strident, overbearing tone. Serious-minded readers who relish an intellectually challenging read and don’t mind being lectured to will appreciate Posner’s reasoning. (Aug.)