On Above The Law, David Lat covers Judge Richard Posner’s acrid remarks concerning current SCOTUS justices (Breyer & Ginsburg are barely adequate), length of Federal judgeships (retire at 80), reason vs common sense, and other topics. David’s conclusion? An artist at work:
More fundamentally, the label “troll” diminishes the brilliance of what Judge Posner is doing.
My unified theory of Judge Posner: he has taken advantage of life tenure, as well as the reputation for brilliance that he painstakingly developed over the course of decades, to become one of the most remarkable performance artists in modern history.
After Posner passes away, we will find in his papers an artist’s manifesto, identifying when his performance began, the theoretical underpinnings of his work as an artist, and the specific “episodes” or “installations” through which he expressed his artistic vision — an argument for the indeterminacy of law and ultimately language. Works might include exchanges like the one just now with Judge Rakoff; written output, like the time he called Chief Justice Roberts “heartless” in a Slate column; and spoken-word performances, such as his brutal takedowns of hapless advocates in oral arguments.
Some might condemn Judge Posner for turning a judicial chambers into an artist’s studio, but I don’t have a problem with it. Keep in mind that he has still managed to do the work of a federal appellate judge in the course of making his art. For decades, he has cast votes, written opinions, and resolved cases, just like his Seventh Circuit colleagues.
It’s a funny post, even for a non-lawyer like myself. Even if I’m taken back by Posner’s preference for common-sense over reason. I find common-sense to be either non-existent or extremely naive in most folks, myself included.
