America's 10th "Supreme" Justice?

September 7, 2014
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Last week, Judge Richard Posner's opinion made clear why he is the most important Judge who does not sit on the Supreme Court.

Last week, Judge Richard Posner’s opinion made clear why he is the most important Judge who does not sit on the Supreme Court.

While only nine justices sit on the U.S. Supreme Court, Appeals Court Judge Richard A. Posner has repeatedly shown his ability to gain outsized recognition and praise from legal minds across ideological or political spectra.  Born on January 11, 1939, in Brooklyn, N.Y., Posner completed his undergraduate years at Yale University before graduating from Harvard Law School.  He clerked for Supreme Court Justice William J. Brennan and worked in the Office of the Solicitor General.  He has been on the faculty of the University of Chicago Law School since 1969.  President Ronald Reagan nominated him to the U.S. Court of Appeals in 1981.  He has published dozens of acclaimed books and has been honored with many awards, however, in recent years, he makes news by being a voice of reason and pragmatism.  In a world that is increasing far left or far right, where ideology trumps evidence and moderate voices are seldom heard, Judge Posner’s voice rings loud and true.  This week, he and the Seventh Circuit Court of Appeals struck down Indiana’s and Wisconsin’s bans on gay marriage.  His ruling is noteworthy because he asked simple questions to arrive at his ruling.  He does not invoke new laws, nor religious doctrine, in explaining his reasoning.  Mark Joseph Stern at Slate stated, “ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.”  Posner had, in fact, seemed incredulous during oral argument.  Interestingly, Posner also appears to have a tense relationship with Justice Scalia.  Both have made derogatory public comments about books or opinions the other has written.  Posner clearly has a more practical interpretation of the law, while Scalia’s “originalism” is viewed by Posner and many others as just a means to satisfy a hard right ideology.  In a 2012 NPR interview, Posner, in fact, distanced himself from the Republican Party when he stated, “I’ve become less conservative since the Republican Party started becoming goofy.”

 

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