Posner v. Scalia, Kerr, and Roberts in Round “I Lost Count”

June 27th, 2014

Judge Posner, not content to merely enjoy a leisurely meal at Slate’s Breakfast Table, has started a food fight with just about everyone.

First,  Posner burns the bacon of the dissenters in Town of Greece v. Galloway:

 The dissenters reasoned that the Constitution requires the town board to recruit some non-Christians, as otherwise the invocation practice is sectarian.

I find it hard to take the dissents seriously.

Second, Judge Posner flips some pancakes at Orin Kerr:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case.  The New York Timesquotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules.  There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

Yes, that Law Professor is Orin Kerr, recently ranked as the most-cited criminal law professor in the last five years. Being quoted on the front page of the New York Times is a big fucking deal.

Posner then discusses a 2012 case he wrote, cited by the majority that reaches the same result. He observes:

The Supreme Court’s decision accelerated a trend toward assimilating virtual to physical property for Fourth Amendment purposes that would eventually have brought the lower courts to the same point.

So yeah, nothing new here. Especially the Constitution, which is just a “pretext.”

I have no objection to the warrant requirement in its present form, but I am surprised that “originalists” and “textualists” on the Supreme Court accept it. That they do is an illustration that what we call “constitutional law” is not, for the most part, the result of interpretation of the Constitution. The Constitution is the pretext for what amounts to a body of judge-made law, much like the common law of England and America.

Finally, Judge Posner squeezes a grapefruit in Chief Justice Robert’s eye:

Now, the last case: this morning’s decision in McCullen v. Coakley, which invalidated a Massachusetts law requiring abortion protesters to keep 35 feet away from the entrance to abortion clinics.* Like Town of Greece, the opinion fetishizes First Amendment rights.

Posner does not think highly of those who wish to speak to those entering abortion clinics:

The concern with privacy that animated the Riley case was forgotten after one day. Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The “godly.” Phew.