Richard A Posner and the Supreme
Court’s Decision-Making Process
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Courts decision in D of C v. Heller is
questionable in in both method and result
Supreme Courts decisions currently emphasize
a freewheeling discretion strongly flavored
with ideology
Scalia claimed that the Heller decision was a
return to “originalism” . In fact originalism
would have yielded the opposite result.
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Actual wordings
Decoupling of clauses
The 18th century tradition of legislative
interpretation: loose or flexible
Testimony of Blackstone and Marshall
It is difficult to amend the Constitution so …
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No straitjackets
No suicide pacts
Realities of militias and their arming (arms and
homes)
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Adamson v California (1947)
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Incorporation of the Bill of Rights v. states
Handsprings to rope in the 14th amendment due process
clause
Liberals v Conservatives – true motives?
Loose construction to prevent a Constitutional
straitjacket and the reverse.
Case of Kennedy v Louisiana and dp for rape
Zelman case and establishment clause and money for
religious schools.
 Kelo case and eminent domain
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When it is proper to use loose construction to
enlarge restrictions on government.
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Necessity of recognizing regional and local differences
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National rights do exist , of course.
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A uniform rule is neither necessary nor appropriate.
Heller: insufficient respect for Federalism, cultural diversity ,
local preference and social experimentation.
Undemocratic ? Rousseau not democracy?
People can move if they are in a minority
Need for judgment as to when they exist and should be
enforced as such.
Claims about what government cannot do create work
for the courts.
The efficacy of legally enforceable rights as an engine
for social change is overrated.
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False history is no solution – “snow jobs”
The way to get ideology out of court decisions
is to adopt ‘judicial modesty’ .
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Less interference with the other branches of
government
Free the court to deal with the many important nonconstitutional issues that it has tended to neglect.