The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia’s life very difficult

On three high-profile cases bound for the Supreme Court, Judge Richard Posner has seen through right-wing blather

Topics: Supreme Court, Richard Posner, Judge Posner, Antonin Scalia, abortion rights, Same-sex marriage, Editor's Picks, University of Notre Dame, ,

The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia's life very difficult Richard Posner, Antonin Scalia (Credit: Reuters/John Gress/Brendan Mcdermid)

Judge Richard Posner has written nearly 40 books, hundreds of articles and thousands of judicial opinions. He is, by far, the most cited legal scholar alive today (probably ever). Nominated by Ronald Reagan, he sits on the United States Court of Appeals, just below the Supreme Court. He has publicly feuded with Justice Antonin Scalia over how judges actually decide, and should decide, cases. And, over the last year, he has spoken truth to power in three high-profile cases all likely to be decided by the Supreme Court.

On issues of abortion, same-sex marriage and religious objections to Obamacare, Posner said exactly what needed to be said with honest, unequivocal and, to some perhaps, startling clarity.

The University of Notre Dame didn’t want to provide certain forms of required contraception to its students and employees so it went to court seeking a religious exemption. The bizarre thing about the case is Notre Dame was already exempt. What it wanted was not to fill out the form that would have guaranteed the university an exemption. Notre Dame claimed, to most people’s disbelief, that filling out the short form and asking for the exemption was itself a substantial burden on its religious exercise.

Posner would have none of it. At the oral argument, he took a harsh tone with the lawyer for Notre Dame who refused again and again to answer directly how filling out a piece of paper could possibly be a “substantial burden on religion.” Becoming more and more frustrated, Posner eventually asked the lawyer to “stop babbling,” and “stop fencing,” eventually warning him that “if you don’t cooperate with me, I’m not going to let you continue your argument.” The judge’s frustration stemmed from his perception that Notre Dame’s claims had no merit, and the lawyer was simply bobbing and weaving.



Eventually, Notre Dame lost (the court of appeals uses three-judge panels) and the final opinion written by Posner said this: “The novelty of Notre Dame’s claim–not for the exemption, which it has, but for the right to have it without having to ask for it–deserves emphasis … What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths … The process of claiming one’s exemption … is the opposite of cumbersome.  It amounts to signing one’s name and mailing the signed form to two addresses.”

From the oral argument through the decision, Posner seemed shocked at the idea that Notre Dame would challenge an exemption given to it by the federal government on the basis that it, gasp, had to ask for it. He couldn’t be more right.

A few months later, Posner, again along with two other judges, reviewed the validity of a brand-new Wisconsin law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. The law, if valid, would make it much more difficult for clinics in Wisconsin to provide abortion services because, of the four clinics in the entire state that perform abortions, two would have been shut down.  Although the case came to the court on a preliminary motion (an emergency stay had been granted by the lower court), Posner took the opportunity to demonstrate why he thought the plaintiffs would eventually prevail.

In affirming the stay, Posner noted that “no documentation of medical need for such an admitting privileges requirement was presented to the Wisconsin legislature when the bill that became the law was introduced.” He also noted that no “other procedure performed outside a hospital, even one as invasive as a surgical abortion (such as a colonoscopy) …  and even if performed when the patient is under general anesthesia … is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed.”  Posner added that the risks of colonoscopies are three to six times greater than the risks of abortions (yet doctors can perform them in outpatient centers without having admitting privileges), and that, based on a report by the state, out of 1,192 abortions that were reported, there were only 16 complications, a rate of less than 1 percent.

Throughout the opinion, Posner implied, though didn’t go as far as to conclude, that the obvious purpose of the law was not to further women’s health but simply to make abortions more difficult to obtain. For example, on the issue of the timing of the law, he said “it has been 40 years since Roe v. Wade … was decided, legalizing (most) abortion throughout the United States, and it could not have taken the State of Wisconsin all this time to discover the supposed hazards of abortions performed by doctors who do not have admitting privileges at a nearby hospital.”

Posner saw through the litigation and the alleged health benefits of the admitting privileges law. His opinion will make it virtually impossible for Wisconsin to win this case if and when it returns for a final disposition, and rightfully so.

Finally, Posner was recently one of three judges to hear oral argument in a lawsuit challenging Wisconsin and Indiana’s ban on same-sex marriage. Although the case has not yet been decided, there is no question how Posner will vote. When the lawyer for Wisconsin justified the ban based on “tradition,” Posner responded by saying “It was tradition to not allow blacks and whites to marry — a tradition that got swept away.” He also said the ban stems from “a tradition of hate … and savage discrimination” against same-sex couples.

During the argument, the state argued that the purpose of the ban had something (ill-defined) to do with procreation and biology. Posner responded, “It’s arbitrary. You’re allowing all these sterile people to get married. Why are you doing that if you’re so concerned with procreation? Why do you let them?”

Posner also asked the state’s lawyer about the harm to children of same-sex couples denied benefits that children of opposite-sex couples receive and further chided the lawyer by saying that “You are concerned with the unfortunate children produced by accidental births … many of these (unintended children) are adopted by same-sex couples, and these children will be better off if their parents can marry, no? Isn’t that obvious?”

Posner thought it was “obvious” that filling out a form cannot possibly be a substantial burden on religion, that the state of Wisconsin and Indiana didn’t care one bit about women’s health when it decided to require doctors who perform abortions to have admitting privileges at hospitals, and that bans on same-sex marriage have little to do with permissible concerns Wisconsin may have about marriage and children and everything to do with unlawful and arbitrary discrimination. As a matter of law he is right about all three cases. As a matter of politics, we will have to wait until the Supreme Court decides to have our final answers.

Eric Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges," and with Lisa McElroy, co-author of "Supreme Secrecy," which will be published next year by Stanford University Press. He has written numerous law review articles on constitutional law and other legal topics. He appears regularly on "StandUp With Pete Dominic" on XM Radio and tweets at @espinsegall.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

Loading Comments...