Richard Posner on Tomorrow's Supreme Court

Question: What direction is the Roberts court headed?

Richard Posner: Well the replacement of Justice O’Connor by Justice Alito did change the balance on the Supreme Court significantly. And Roberts has shown. He’s new. He’s only been there a couple of years, but seems to be probably actually more conservative than Renquist whom he replaced. It’s a more conservative court, and there are different directions. They could keep chipping away Roe v. Wade.

There’s been a kind of program of conservative retrenchment. Well it’s retrenchment and expansion. It’s not entirely retrenchment. So some of the conservative justices are hostile to federal power. They’d like to alter the boundary between state and federal power in favor of the states.

So Congress is allowed, among other things, to regulate interstate commerce. So the more broadly you define interstate commerce, the greater the Congress’ regulatory power. So they continue shrinking that. 

These hot national security issues now, and the conservative justices are more likely to endorse broad presidential power. But that’s less certain. Justice Scalia has actually written a strong opinion in one of the cases against presidential powers, so you can’t be sure. And it’s hard to predict these things because at the moment you have four liberals, four pretty extreme conservatives, and then you have Justice Kennedy in the middle, and he’s actually quite conservative, certainly by historical, if you look back to the ‘60s, very conservative. But he’s not as conservative as those four, so sometimes he swings to the left, and that makes the court quite unpredictable.

So he joined an opinion by Justice Stevens holding that carbon dioxide, the global warning villain, could be deemed a pollutant that the Environmental Protection Agency could regulate. And that was a significant liberal decision, and Kennedy joined that.

He wrote the opinion which invalidated the execution of 17 year olds. And he’s written two opinions that were very sort of pro-homosexual rights. So there is an element of unpredictability in him which makes the entire court unpredictable because he’s the swing justice.

And of course you don’t know when there will be further vacancies, who will fill them, how they’ll be filled. And also justices sometimes change their views. They kind of drift one way or the other.

Another thing related to that drift, it’s often difficult to know whether a judge or justice is changing his ideology, or he’s in the same place, but the environment is shifting. So you can be in the mainstream, and as the stream shifts you find yourself on the extreme left bank or the right bank. So as the court becomes more conservative, some of the conservative judges may say, “Well I’m not really that conservative.” So then they begin to look somewhat more liberal. So I think Justice Black in the ‘60s would have been the extreme liberal drifted as the Warren court became more and more liberal he, not really changing his views particularly, became more conservative. It’s all relative.

Recorded on: Nov 21, 2007

Judge Richard Posner on the future of the Roberts court.

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Originally Poe envisioned a parrot, not a raven

Quoth the parrot — "Nevermore."

The Green Parrot by Vincent van Gogh, 1886
Culture & Religion

By his mid-30s, Edgar Allan Poe was not only weary by the hardships of poverty, but also regularly intoxicated — by more than just macabre visions. Despite this, the Gothic writer lucidly insisted that there was still a method to his madness when it came to devising poems.

In an essay titled "The Philosophy of Composition," published in 1846 in Graham's Magazine, Poe divulged how his creative process worked, particularly in regard to his most famous poem: "No one point in [The Raven's] composition is rerferrible either to accident or intuition… the work proceeded step by step, to its completion with the precision and rigid consequence of a mathematical problem."

That said, contrary to the popular idea that Edgar Allan Poe penned his poems in single bursts of inspiration, The Raven did not pour out from his quivering quill in one fell swoop. Rather it came about through a calculative process — one that included making some pretty notable changes, even to its avian subject.

As an example of how his mind worked, Poe describes in his essay that originally the bird that flew across the dreary scene immortalized in the poem was actually… a parrot.

Poe had pondered ways he could have his one word refrain, "nevermore," continuously repeated throughout the poem. With that aim, he instantly thought of a parrot because it was a creature capable of uttering words. However, as quickly as Poe had found his feathered literary device, he became concerned with the bird's form on top of its important function.

And as it turns out, the parrot, a pretty resplendent bird, did not perch so well in Poe's mind because it didn't fit the mood he was going for—melancholy, "the most legitimate of all the poetical tones." In solving this dilemma in terms of imagery, he made adjustments to its plumage, altogether transforming the parrot — bestowing it with a black raiment.

"Very naturally, a parrot, in the first instance, suggested itself, but was superseded forthwith by a Raven, as equally capable of speech, and infinitely more in keeping with the intended tone," Poe explained in his piece in Graham's. "I had now gone so far as the conception of a Raven — the bird of ill omen — monotonously repeating the one word, 'Nevermore,' at the conclusion of each stanza, in a poem of melancholy tone…"

It was with these aesthetic calculations that Poe ousted the colorful bird that first flew into his mind, and welcomed the darker one that fluttered in:

In there stepped a stately Raven of the saintly days of yore;
Not the least obeisance made he; not a minute stopped or stayed he;
But, with mien of lord or lady, perched above my chamber door—
Perched upon a bust of Pallas just above my chamber door—
Perched, and sat, and nothing more.
Then this ebony bird beguiling my sad fancy into smiling,
By the grave and stern decorum of the countenance it wore…

The details of the poem — including the bird's appearance — needed to all blend together, like a recipe, to bring out the somber concept he was trying to convey: the descent into madness of a bereaved lover, a man lamenting the loss of a beautiful woman named Lenore. With that in mind, quoth the parrot — "nevermore" just doesn't have the same grave effect.

* * *

If you'd like to read more about Edgar Allan Poe, click here to review how his contemporaries tried to defame him in an attempt to thwart his success.

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