Washington WHAT STRIKES fear into the hearts of liberals is the thought that, if reelected, President Reagan may well appoint several new members to the Supreme Court, and thus shape the nation’s legal future well into the next century. Five justices are 75 years or older. Justice Brennan, the most elderly, is 78, and he is followed in order of age by Burger and Powell, both 77, Marshall, 76, and Blackmun, who will turn 76 next month. Reagan’s first choices presumably would be one or another of his cronies: William P. Clark, the secretary of interior, or William French Smith, the attorney general. But these very political men undoubtedly would stir controversy on Capitol Hill, and in the case of Clark who was never able to graduate from law school would almost certainly plunge the Administration into a protracted political struggle, endangering its overall programs. For conservatives, a far more principled and more likely course would be for the President to stake out new ground by appointing one or more justices from a brilliant coterie of conservative legal minds who have sought to apply freemarket economic theory to the law. This new and rapidly developing doctrine of “law and economics” emanates from the University of Chicago school of free marketeers, and is generally taken to be the seed bed of Reaganomics. Reagan already has elevated “law and economics” to considerable prominence within the court system. Four of the president’s 27 appointees to the Court of Appeals are members, and all of them are mentioned as possible Reagan appointees to the Supreme Court. One of the four is Richard Posner, a former University of Chicago law professor who now sits on the U.S. Court of Appeals in Chicago. James Ridgeway’s columns on the Reagan era are a regular feature of the Texas Observer. Of the four, Posner is by far the most important. He would be the Ayn Rand of the Supreme Court, pushing legal thought into yet uncharted waters of economic analysis, sketching a view of the social order now only dimly imaginable. Richard Posner, 45, graduated in 1959 summa cum laude from Yale, and was first in his class at Harvard Law School where he was president of the law review. He clerked for Supreme Court Justice William Brennan Jr., who according to American Lawyer, said at a party that Posner and William 0. Douglas were the only authentic geniuses he had ever encountered. Posner then was staff assistant to Philip Elman, a liberal member of the Federal Trade Commission in the early 1960s. After working for Elman he was an assistant to then U.S. solicitor general Thurgood Marshall. He was general counsel to President Johnson’s task force on communications policy, taught law briefly at Stanford, then went to the University of Chicago where he was a member of the faculty for 13 years. While at Chicago, Posner co-founded a successful economics and law consulting service called Lexecon, Inc., whose clients included major law firms and corporations. \(He sold his interest in the Posner has written 10 books and over 100 articles. He eschews clerks, writing his opinions quickly on a word processor in his office. On the bench, Posner is a practitioner of the Socratic method, rendering the attorneys helpless, or as one peeved judge put it, “beating those fellows to death.” Posner’s major contribution to law has been to push the theory of economic efficiency \(the greatest benefit at the Posner, is another meaning of justice. Thus he derided the exclusionary rule because it was inefficient. The way to correct unlawful search and seizure, in Posner’s view, is to abolish the rule and let the free market reign through suits pressed by victims against police officers. If enough big jury awards are won then the police will be deterred. Posner believes in a capitalism unfettered by interference from the state. You can get a better whiff of Posnerism by sampling a few cases. In a case brought by an Illinois state prison inmate, the federal district court dismissed a petition for habeas corpus without fully reviewing the state court’s findings of fact. The appeals court reversed. Posner, in concurring, attacked the 1966 Supreme Court decision that permitted such a ruling. That decision, he said, was a “product of its time . . . [in which] the southern states’ resistance to courtordered desegregation had induced a wide-spread skepticism concerning [their] willingness . . . to protect the federal constitutional rights of their black citizens.” Posner said it was unlikely the court would rule the same way today, and he urged Congress to rewrite the habeas corpus statute. The current review of state court records by federal judges “undermines the responsibility and morale of state judges . .. undermines the legitimacy of the criminal justice system, imposes unduly on the time of our busy district judges, arouses false hopes in state prisoners, and probably does not increase the overall accuracy of constitutional determinations.” In another now notorious case, an Indiana state prison inmate had complained to authorities about blurred vision in one eye. Nothing was done and the eye got worse. When doctors finally got around to the prisoner, they operated on the wrong eye, with the result that the inmate was left functionally blind in both eyes. The inmate sought redress, requesting court-appointed counsel and a jury trial. A district court judge refused. The appeals court reversed the decision. Posner, in a partial dissent, argued no lawyer should be appointed because “a prisoner who has a good damages suit should be able to hire a competent lawyer. . . . By making the prisoner go this route we subject his case to the test of the market. [The plaintiff] alleges that the defendants are legally responsible for his blindness. If this were so, he would have a case that was attractive to many personal injury lawyers. If [he] cannot retain a lawyer on a contingency fee basis the natural inference to draw is that he does not have a good case. It is reasonably clear to me that he does not have a good case.” In the September 30th Washington Post, Lincoln Caplan quotes Posner: “I hate ‘justice.’ The word is meaningless. If it’s used in a judicial opinion, it’s used to obscure the grounds. I think we could do without it.” The Reagan Court The “Law and Economics” Doctrine By James Ridgeway
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