Posner v. Roberts, Round I: Does “intellectually sophisticated chief justice” hold “naive-seeming conception of the political process”

June 25th, 2014

Ding! Ding! Ding! Judge Posner is branching off his relentless pursuit of Justice Scalia, and now directing his ire at Chief Justice Roberts. In his latest meal at Slate’s Breakfast Table, he faults the Chief Justice’s administration of the Court.

The chief justice is the administrative head of the entire federal judiciary, which includes not only the lower federal courts but also a rather elaborate administrative apparatus (the Administrative Office of the U.S. Courts) and a major research/training institution (the Federal Judicial Center). Yet the impression one gets is that chief justices take little interest in anything other than their own court, the Supreme Court. Chief Justice Warren Burger was an exception, though probably one has to go back to Chief Justice Charles Evans Hughes, who retired in 1941, to find a chief justice who had significant leadership and management skills. (He had a most remarkable CV: practicing lawyer, law professor, secretary of state, presidential candidate, member of the Court of International Justice.) Odd that presidents no longer seem to consider the management role of the chief justice a factor to be considered in picking one.

Wouldn’t be better off with a Chief Justice Posner?

Next, Judge Posner turns to the Chief’s opinion in McCutcheon, with this harsh remark.

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated chief justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. The legislator who does not honor the implicit deal is unlikely to receive similar donations in the future. By honoring the deal he is not just being “responsive” to the political “views and concerns” of constituents; he is buying their financial support with currency consisting of votes for legislation valuable to his benefactors. Isn’t this obviously a form of corruption?

Ouch. Returning the favor, the Chief favorably cited a Posner opinion in Riley:

Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand- entry phone book, and so on. See id., at 30; United States v. Flores-Lopez, 670 F. 3d 803, 806 (CA7 2012)[Posner, J.].