No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. Skewering the politicization of the Supreme Court, the mismanagement of judicial staff, the overly complex system of appeals, the threat of originalism, outdated procedures, and the backward-looking traditions of law schools and the American judicial system, Posner has written a cri de coeur and a battle cry. With the prospect that the Supreme Court will soon be remade in substantial, potentially revanchist, ways, The Federal Judiciary exposes the American legal system’s most troubling failures in order to instigate much-needed reforms.
Posner presents excerpts from legal texts and arguments to expose their flaws, incorporating his own explanation and judgment to educate readers in the mechanics of judicial thinking. This rigorous intellectual work separates sound logic from artful rhetoric designed to subvert precedent and open the door to oblique interpretations of American constitutional law. In a rebuke of Justice Antonin Scalia’s legacy, Posner shows how originalists have used these rhetorical strategies to advance a self-serving political agenda. Judicial culture adheres to an antiquated traditionalism, Posner argues, that inhibits progressive responses to threats from new technologies and other unforeseen challenges to society.
With practical prescriptions for overhauling judicial practices and precedents, The Federal Judiciary offers an unequaled resource for understanding the institution designed by the founders to check congressional and presidential power and resist its abuse.
The book is an interesting and boldly written tour of the judicial branch of the federal government.
[Posner’s] call to arms against originalism and outdated procedures in the American judicial system are as urgently relevant as they have ever been…The Federal Judiciary is very much worth reading. Posner demonstrates beyond a reasonable doubt that originalism is a bankrupt legal philosophy. He reminds us that eighteenth century Americans could not foresee NSA spying, lethal injections, or public sector unions…Posner demonstrates as well that Justice Scalia, the emperor of originalism, had no clothes. Indeed, Posner cites several cases in which Scalia abandoned originalism when it got in the way of a result he preferred.
Persuasive…Serious-minded readers who relish an intellectually challenging read…will appreciate Posner’s reasoning.
Posner’s newest book is a delightfully iconoclastic critique of ideas many judges and academics hold dear, full of interesting, original, and wide-ranging claims for reform in the federal judiciary and law school teaching.
In this book on the federal judiciary, Judge Posner takes aim at every sacred legal cow: the Supreme Court and its Justices; law schools; the existence, even desirability, of apolitical judges. His critique of the federal bench as dangerously enthralled to backward-looking judicial standpattism will be controversial, as will his proposals for reform, but they cannot be ignored.
[Posner’s] persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think…His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.
- 464 pages
- 6-1/8 x 9-1/4 inches
- Harvard University Press
From this author
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