On June 24, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit made headlines when he wrote in Slate: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation… the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.”

A week later, responding to what he considered “an unusual number of criticisms,” Posner posted a follow-up piece in which he admitted the language of his original post “could be read as suggesting” the Constitution plays no role in interpreting the law, and apologized if “carelessness resulted in [his] misleading readers.” He then attempted to clarify his position, arguing that occasional vagueness in the Constitution’s text forces judges to either “dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems,” or “decide many constitutional cases by broad interpretation of the Constitution’s vague provisions...”

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Posner’s “apology” is about as reassuring as a wet blanket; it is clear his regret encompasses not his remarks, but only the trouble they are now causing him.

To begin, Posner’s use of the phrase “could be read as suggesting” is highly revealing. “Could” and “suggesting” are ghastly qualifiers; any reader would almost certainly (as they did in reality) interpret Posner’s words as foreboding for the Constitution’s relevance in today’s judicial system. All equivocation aside, I am unsure how a Posner-inspired judge, having spent not even “seconds” studying the text of the Constitution, could possibly find a way to apply it to the calculus of real-life decision.

Equally unconvincing is Posner’s decision to blame “carelessness” for his inflammatory writings. To be clear: a federal appellate judge who is oft-described as one of America’s greatest legal minds does not speak—or in this case, publish—carelessly, especially when discussing the role of the Constitution in judicial decision-making. More persuasively, this is not the first (although it is the most explicit) time Posner has expressed sympathies towards conditioning the application of the Constitution’s original meaning on the prevailing winds of modern public passions. As recent as March, Posner told the Dallas Morning News that stare decisis—the doctrine of legal precedent—should be applied “very infrequently,” and offered the Constitution’s old age as supposed evidence of its fading importance (a curious position for a near-octogenarian to hold). Indeed, the only genuine carelessness on Posner’s part was his gamble that Americans would share his disdain for the Constitution.

Worsening matters is Posner’s attempt at clarification, which does nothing to repair the damage of his original post. In sum, he argues that in instances where the meaning of the Constitution’s text is not patently obvious, a judge’s best bet is either to discount the text entirely or paint it with a broad, better-safe-than-sorry interpretive brush. While no person may realistically demand perfection in matters of Constitutional interpretation, for a judge to apply such a methodology is tantamount to a dereliction of duty. Significantly, in embracing such overly-simplistic practices, Posner exposes the principal weakness of his cherished doctrine of “legal pragmatism”; namely, its haunting proclivity for all things arbitrary and capricious.

In his dissenting opinion in Whole Woman’s Health v. Hellerstedt, Justice Clarence Thomas recommended the Court “abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.” For Posner, all pretense has vanished. By laying bare his contempt for the Constitution, Posner violated his oath of office and permanently stained the honor of the federal judiciary. If it has not done so already, this hard truth will metastasize to the integrity of Posner’s seat, leading every constitutionally-minded litigant to hesitate before submitting to his jurisdiction. To preserve an otherwise-exceptional legacy, Posner should speedily acknowledge this inevitability, and quietly resign his seat to a more fitting occupant—before the angry whispers of impeachment crescendo into a deafening roar.


Thomas Wheatley is a student at the Antonin Scalia Law School in Arlington, Va. Email him at tnwheatley@gmail.com.