"Why did they start with abortion clinics? Because it begins with the letter 'A'?" asked Judge Richard Posner.

At the oral argument in the 7th Circuit Court of Appeals yesterday.

The subject was Wisconsin's new law requiring doctors at abortion clinics to have access to hospitals within 30 miles, which has been temporarily blocked by the lower court.

At times appearing exasperated, Posner repeatedly interrupted [Wisconsin assistant attorney general Daniel] Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries....

Lennington professed to have no idea why. One suspects that the reason is: Because it's only abortion that we disapprove of and therefore want to encumber. If that's the real answer, Lennington wouldn't want to say it, because it lays the groundwork for finding the law to be the kind of undue burden that violates privacy rights.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.

At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."

Lennington didn't even know if there were records?! If you actually want to get away with imposing these burdens, you ought to build a foundation for showing that there are strong medical reasons for the new requirement. But then it would be less obvious that the law expresses opposition to abortion. I'm going to presume that the legislature wanted to flaunt its opposition to abortion — for political reasons — and the law is more of a gesture than a genuine health provision that can and should be upheld.

Part of the plan, perhaps, is a tempting invitation to the judges to strike it down. Can a judge resist? If not, the social conservatives will bray about "activist judges," and they'll overplay their hand, in all likelihood, and we'll be back in the throes of the "war on women" just in time for the next presidential election, which, of course, will be won by Hillary Clinton, who — through judicial appointments and federal statutory law and health-care regulations — will save The Right To Choose.

The Supreme Court's religion and the Constitution cases "satisfy no one — including the Justices" who go on "fact-free intuitions about religion..."

"... which vary with their attitudes toward religion, which in turn derive from their religious beliefs and affiliations, or lack thereof." They "form confident views without any empirical basis."

Fact-free constitutional adjudication is abetted by constitutional lawyers (prominently including professors of constitutional law), who “know little about their proper subject matter— a complex of political, social, and economic phenomena. They know only cases. An exclusive diet of Supreme Court opinions is a recipe for intellectual malnutrition.”

Writes Judge Posner in "Reflections on Judging" (quoting himself in an earlier book). Here's his footnote summarizing the mess in the case law:

See, for example, Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398– 99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late-night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).

I'd have given credit to the Justices responsible for those vivid words — Thomas and Scalia, respectively. 

AND: By the way, quoting Scalia and Thomas doesn't very well support the proposition that no one is satisfied (though the proposition is probably true or close to true).

"Law attracts some very bright people. But it is not profound. It is one of the simplest professional fields."

"... The young are analytically sharper than the old but lack experience. In an analytically weak field, experience may be essential to successful problem solving."

Writes Richard Posner, the 74-year-old judge, in his "Reflections on Judging."

AND: In line with this stress on real-world problem-solving is this proposal for law schools:

Law schools should require students who lack a technical background... to take a course in accounting and a course in statistics; a course that places a field or fields of law in its (or their) technological context; and at least one course, elsewhere in the university, of a purely scientific or technical character, such as applied math, statistics, economics (at the level at which it employs calculus and statistical analysis), physics, physiology, biochemistry, organic chemistry, some branch of engineering, or environmental or computer science.... If room needs to be made in the curriculum by cutting or shortening other courses, there is a good place to start: it is called constitutional law. Dominated as it is by the most political court in the land, constitutional law occupies far too large a role in legal education.

Judge Posner wrote a whole book and was, he says, surprised when everybody fixated on one sentence.

The "I plead guilty" one:

The sentence runs from the bottom of page 84 to the top of page 85, in a chapter entitled “The Challenge of Complexity.” The sentence reads in its entirety: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” (The footnote provides the name and citation of the opinion: Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).)

And now he has to write a whole article to explain to the damned cherry-pickers what it means in context. Of course, he can't be surprised that any sentence that can be used by people who already have things they want to say will be used, especially on a hot issue like voter ID. Anything you say in a book of law can and will be used against you.

A judge doesn't have to write a book revealing ways of thinking about the cases that don't show up in the written opinions. He has a right to refuse to write anything other than the required cases, clamped into the conventions of judicial opinion writing.

But Judge Posner obviously loves to write his books. Who puts out more outside-of-the-opinions writings about what's really going on in the opinions than Richard Posner? He must love even when people get things wrong. People are talking about his writings, and that creates an occasion for more writing, and then people will talk about that too, as we're doing now.

All the best to the great Judge Posner — understood or misunderstood — innocent or guilty. Thanks for all the books, including the new one, "Reflections on Judging," which I'm downloading so I can — I plead guilty! — rip sentences out of context and work my will on them, cranking out the verbiage in this grand fellowship of graphomania.

"I don’t endorse the argument of the philosopher John Rawls that no one is entitled to a high income because..."

"... even characteristics that we think internal rather than external to a person, like IQ and leadership skills and athletic skills and energy and good health, are ultimately the product of luck. Therefore, Rawls argued, no one should be allowed to keep more of his earnings than necessary to 'incentivize' him to exert himself in a way that will maximize the social product."

So says Richard Posner. His objection is:

That treats people like the cells of an animal’s body, or the ants in an ant heap. Rather my point is that, to the extent reducing income inequality increases overall social welfare, there is a case for programs, financed by the well to do, that increase overall welfare by more than the cost of the programs. There is no reason to think that the cost would impose a crushing burden on the well to do, a result that would be objectionable quite apart from the costs in diminished incentives, and related costs such as tax avoidance and emigration.

Chew on that. I was distracted by "ant heap." Who says "ant heap" rather than "ant hill"?  I'm more the literary type than the economic. But speaking of departmentalization of each of us having our various skills and predilections, whether inborn or cultivated, my searching for the answer to my heap/hill question brought me quickly to this Robert Frost poem, "Departmental":

An ant on the tablecloth
Ran into a dormant moth
Of many times his size.
He showed not the least surprise.
His business wasn't with such.
He gave it scarcely a touch,
And was off on his duty run.
Yet if he encountered one
Of the hive's enquiry squad
Whose work is to find out God
And the nature of time and space,
He would put him onto the case.
Ants are a curious race;
One crossing with hurried tread
The body of one of their dead
Isn't given a moment's arrest-
Seems not even impressed.
But he no doubt reports to any
With whom he crosses antennae,
And they no doubt report
To the higher-up at court.
Then word goes forth in Formic:
"Death's come to Jerry McCormic,
Our selfless forager Jerry.
Will the special Janizary
Whose office it is to bury
The dead of the commissary
Go bring him home to his people.
Lay him in state on a sepal.
Wrap him for shroud in a petal.
Embalm him with ichor of nettle.
This is the word of your Queen."
And presently on the scene
Appears a solemn mortician;
And taking formal position,
With feelers calmly atwiddle,
Seizes the dead by the middle,
And heaving him high in air,
Carries him out of there.
No one stands round to stare.
It is nobody else's affair
It couldn't be called ungentle
But how thoroughly departmental

Put that in your Rawlsian/Posnerian analysis.

The 7th Circuit strikes down the Illinois concealed-carry ban.

The Sun-Times reports:

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home," Judge Richard Posner wrote in the court's majority opinion.

"The Supreme Court has 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," he continued.

"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," Posner wrote.

The Illinois legislature has 180 days to write a better-tailored law.

"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Justice Scalia is out and about, antagonizing — antoninonizing — students, this time at Princeton, with "a form of argument that I thought you would have known, which is called the 'reduction to the absurd.'"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."

[The student] said afterward that he was not persuaded by Scalia's answer. He said he believes Scalia's writings tend to "dehumanize" gays.

Actually, he's humanizing you by crediting you with the capacity to comprehend rhetoric and engage in an on-the-fly verbal interchange. But it is easier to dehumanize your adversary. Afterwards.

What do they teach you at Princeton?

ADDED: Jaltcoh has 3 thoughts about this.

AND: David Lat reminds us about what Judge Posner said about horse meat: "a state is permitted, within reason, to express disgust..."