The Metamorphosis of Judge Richard Posner

Judge Posner, a federal appellate court judge for the Seventh Circuit, has changed.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago

In 2009, he published A Failure of Capitalism, in which he argued against lax monetary policy and deregulation. Last year, he confessed to Nina Totenberg on NPR that “I’ve become less conservative since the Republican Party started becoming goofy.”

Just this past month he came out in no uncertain terms with strong criticism for Citizens United v. Federal Election Commission,
claiming:

Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”

He didn’t stop there. Posner brought up the Supreme Court’s 2008 decision in District of Columbia v. Heller, which affirmed the right of individuals to have handguns at home for self-defense. Noting that he doesn’t think the Second Amendment has anything to do with an individual’s right to bear arms, a basis of the decision for which Scalia wrote the majority opinion, he quipped: “That didn’t slow down Scalia…. He loves guns. He’s a hunter.”

Judge Posner addressing Chinese legal scholars at the University of Chicago

Judge Posner addressing Chinese legal scholars at the University of Chicago

N.B.: On December 11, Judge Posner delivered the opinion of the Seventh Circuit that “The Supreme Court decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions.” [my emphasis]

Judge Posner was speaking to six dozen legal scholars from China, Taiwan, and Hong Kong attending the Chicago Summer School in Law and Economics, an intensive two-week course from July 9 to 20.

He also dismissed the notion that judicial behavior isn’t affected by a wide variety of variables, including regional and religious differences. He gave the example of a study of political asylum applications, noting that the rate of reversal of denials ranges from 34 percent in the 7th Circuit to 2 percent in the 4th Circuit. He explained that researchers concluded “wherever you come from, if you end up in Virginia versus Illinois, your chances of being deported are immensely greater.”

In addition, Judge Posner recently wrote a subtly supportive piece on gay rights in the August 5, 2013 issue of “The New Republic,” noting wryly, after enumerating the reasons why denial of such rights is irrational:

For all these reasons, it is hard to make a case for discriminating against them, apart from a religious case based largely on Roman Catholic doctrine (invoked in Justice Alito’s dissent in Windsor, quoting the official Roman Catholic line on homosexual marraige from the recent book What Is Marriage?, co-authored by Robert P. George), which is part of the larger mystery of why sex has come to play such a large role in some monotheistic faiths.”

One of us graduated from the law school of the University of Chicago, and always looked up to Richard Posner as a hero. The other of us always wondered why. But now I know. He is a man not afraid of change, and no longer a stranger to compassion.

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