Richard A. Posner is a judge on the U.S. Court of Appeals for theSeventh Circuit and a senior lecturer at the University of ChicagoLaw School. The Judge in a Democracy By Aharon Barak (Princeton University Press, 332 pp., $29.95) Aharon Barak, a long-serving justice (eventually the chief justice)of the Supreme Court of Israel, who recently reached mandatoryretirement age, is a prolific writer, and this is his most recentbook.
THE REVELATION BY The New York Times that the National Security Agency (NSA) is conducting a secret program of electronic surveillance outside the framework of the Foreign Intelligence Surveillance Act (FISA) has sparked a hot debate in the press and in the blogosphere. But there is something odd about the debate: It is aridly legal. Civil libertarians contend that the program is illegal, even unconstitutional; some want President Bush impeached for breaking the law. The administration and its defenders have responded that the program is perfectly legal; if it does violate FISA (the administr
When something goes wrong, we look for someone to blame, in the hope that by finding and punishing a culpable individual we can prevent a repetition. Sometimes this is little better than scapegoating, which is my reaction to the search for someone to blame for the failure to detect the September 11 plot or to discover that Saddam Hussein had abandoned his weapons of mass destruction.
Blink: The Power of Thinking Without Thinking By Malcolm Gladwell (Little, Brown, 277 pp., $25.95) There are two types of thinking, to oversimplify grossly. We may call them intuitive and articulate. The first is the domain of hunches, snap judgments, emotional reactions, and first impressions—in short, instant responses to sensations. Obviously there is a cognitive process involved in such mental processes; one is responding to information. But there is no conscious thought, because there is no time for it.
John Marshall was not the first chief justice. The Supreme Court was formed in 1789, shortly after the Constitution was ratified, and Marshall was appointed in 1801. But the Court had little business in its early days, and the period of Marshall's chief justiceship, which extended until his death in 1835, was the formative era in the history of the Supreme Court and in the interpretation of the Constitution.