Justice Scalia may be waiting for another day to face off against Judge Richard Posner.
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  • Justice Scalia may be waiting for another day to face off against Judge Richard Posner.

Within the federal judiciary, it’s never supposed to get personal, but there are times I don’t believe it.

Neil Steinberg had this to say yesterday about the Supreme Court’s decision, announced Monday, to punt five same-sex marriage cases.

It only takes four justices to ask to review the case [or cases]; four justices obviously didn’t ask.

One of those milestones was the ruling Sept. 4 by Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, who eviscerated the Indiana and Wisconsin cases in such strong language that even a revanchist blowhard like Justice Antonin Scalia would be reluctant to grapple with his white hot logic.

Posner and Scalia have had quite the judicial feud over the past few years, and I think Scalia would be delighted to grapple with Posner’s logic, provided he were writing for the majority. When a Supreme Court justice is assigned to overrule an appellate judge, he has all the advantages. Posner’s appellate opinion might have been incandescent, but Scalia could come after it any way he wanted to. Even if he didn’t sound smarter than Posner he’d overrule him anyway. It wouldn’t be a fair fight.

But if Scalia were writing in dissent, I can see his problem. He would either put Posner (and the court majority) to intellectual shame anyway, or he’d humiliate himself by trying so hard to and failing. I am sure that Scalia, who thinks he’s as smart as anyone, wants to put Posner to shame—but you pick your spots. Scalia famously insisted in 2012 that Posner’s criticisms of him rolled off his back: “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.” But you can only be so haughty if you’ve got a majority of the court behind you.

Scalia clearly abhors the recent raft of appellate rulings favoring gay marriage, yet I wonder if he even voted to review them. I can see him making a calculated and personal decision to take on Posner another day, not this one.

Here are previous stories I’ve written about the Posner-Scalia row. Here. Then here. And here. And here.