Less Than “Great” Deference To Judge Posner

In his concurrence in United States v. Dessart, Seventh Circuit Judge Richard Posner takes issue with the obsequiousness of review of a warrant under Franks v. Delaware, and that’s terrific, because Franks is a ridiculous decision decided by the Supreme Court of Fantasy Land where a judge will review a warrant, whether issued by him or one of his pals at the judge cafeteria, and, with a completely open mind, opine that he or the other judge was a blithering idiot for signing off on the warrant.

Except, Posner can’t seem to focus on the ridiculousness of the Franks decision, but lapses into a rant against the words, the rhetoric, used by courts in their opinions.

I do not criticize the majority for re‐ citing them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. First is the proposition that when a judge issues a warrant, whether to search or to arrest, the appellate court “must afford ‘great deference’ to the issuing judge’s conclusion” that there was probable cause. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). This proposition derives from Illinois v. Gates, 462 U.S. 213, 236 (1983), where we are told that the Supreme Court has “repeatedly said that after‐ the‐fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Why great deference? Because, we’re told in Ornelas v. United States, 517 U.S. 690, 698–99 (1996), “the Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant,’ Illinois v. Gates, supra, 462 U.S. at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable‐cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.”

This is a curious passage in three respects. First, why should a reviewing court accord “great” deference to a magistrate’s determination of probable cause? The term “magistrate,” often used in place of “judge” to designate the judicial officer who issues warrants, is an acknowledgment that warrants usually are issued by the most junior judicial officers—and often police or prosecutors can shop among magistrates for one who is certain or almost certain to respond affirmatively to a request to issue a warrant. Second, the Fourth Amendment does not express a preference for searches conducted pursuant to warrants. Warrants are mentioned only in the amendment’s second clause, which forbids general warrants and warrants not supported by both probable cause and an oath or affirmation. Nothing in the amendment requires warrants—ever.

Whoa. Catch that last sentence? Totally disconnected from everything else he just wrote, which was his griping about word choice, Posner tosses in his own little dig about the Fourth Amendment warrant clause being meaningless.

As Jacob Gershman at the WSJ Lawblog calls it, Posner has gone to war. Not with the warrant clause or Franks, but with the rhetoric of law.

Judge Richard Posner, who sits on of the Seventh U.S. Circuit Court of Appeals in Chicago, has never concealed his distaste for distended, overly complex, Latin-littered legal writing. But in a recent court opinion and media interview, he’s launched his most aggressive assault on legalese.

And then Posner gave Zoe Tillman an interview, where he cranked it up a notch.

“I’ve actually become more concerned about legal jargon, and I mean very bothered by it,” he said.

Judge Posner said he holds “backward-looking” law schools responsible for the scourge of jargon.  And he offered examples to NLJ of terms he thinks ought to be expunged from lawyer lexicon:

One is “plain meaning.” When interpreting a statute, you’re supposed to look for “plain meaning,” and I don’t know how “plain meaning” would differ from “meaning.” But I can’t say that’s the worst.

Here’s one I really dislike: “narrow tailoring.” Isn’t it funny? It means, well, you don’t want to have a broad shoulder on your jacket, you want narrow tailoring.

There’s no jargon advocacy group that could present a counterpoint.

To load the counterpoint as “jargon advocacy” is a little dickish, but that’s why there are cats willing to look upon kings like Posner.  Words are the tools with which lawyers and judges work. They’re blunt tools. No one appreciates how poorly words suffice to communicate a clear idea more than those of us who are constrained to bet other people’s lives on them.

Since Posner chose “narrow tailoring” as his example of the worst use of jargon, I’ll play along. The allusion is to a suit of clothing, because metaphors have proven a historically fun source of legal reference. One can get a bespoke suit that perfectly fits one’s oddly shaped body, such that the button across the waist meets its hole exactly where it should, the sleeve ends precisely the right distance above the top of the thumb to reveal a half inch of cuff. This suit can make the oddest shaped guy look like James Bond.  Not the Daniel Craig one, but the Sean Connery one.

Or, one can get a suit that comes off the rack, is taken in a bit here, let out a bit there, doesn’t look like you’re wearing your dead uncle’s jacket but certainly doesn’t look like some guy in Hong Kong slaved over matching the pin stripes.

So is “narrow tailoring” the same as “tailoring”? I have bespoke suits and off the rack suits. They are not the same.  Is “plain meaning” the same as “meaning”? The point is that courts try, most of the time, to add an adjective to express an idea with greater clarity than it would have without it. Does it work? Maybe not, or at least not all the time. Maybe it has become trite by too many repetitions without honoring the idea. Maybe lawyers accept the premise that the phrasing of a rule by the Supreme Court, or even the Seventh Circuit, sucks, but it’s what we’re left to work with, for better or worse.

And when a word or phrase, because the Supremes announced it, becomes embedded in the law, we beat our heads against the wall trying to make the most sense of it we can. But does the word make any better sense by eliminating the adjective, reducing it from “term of art” to meaninglessness?

Non-lawyer philosopher kings tell us that the words are clear, obvious, until lawyers get their mitts on them and screw things all up. What they’re really saying is that they are certain that their understanding of the words is the right one, the only one, because it’s theirs. That’s fine for them, because they have no responsibility to communicate the idea to the rest of us, so they can luxuriate in the clarity of whatever thoughts exist within their own heads. Lawyers and judges aren’t so lucky.

When a judge uses a non-standard phrase to explain a decision, it sends us into a tizzy. Not because we have the guild mentality of adoring our traditional super secret lingo, but because we have no clue what the judge is trying to say. Is he rejecting the rule, crafting a new one, or just using different words? Do the different words carry different meaning? What meaning? What’s the difference? The only way to know is to decipher the words, and the less clarity they offer, the less clue we have.

And why is evidence in a criminal trial to be viewed “in the light most favorable to the prosecution“? It’s been said that when an appellant “challenges the sufficiency of the evidence to convict him … by expressing his disagreement with the state trial judge’s [or the jury’s] decision to believe one of the eyewitnesses against him,” we cannot reverse the conviction unless given some “basis to suppose that the trial judge was irrational to credit this witness’s testimony.” Johnson v. Gramley, 929 F.2d 350, 351 (7th Cir. 1991). Yet often the study of a trial transcript reveals not that the judge was irrational but that there was no basis for believing or disbelieving the witness—the judge was guessing, and while the guess was rational it can’t realistically be thought to have determined guilt or innocence.

And why must a conviction be affirmed even if it is apparent that the trier of fact (judge or jury), while not irrational, was mistaken? Why in short are the dice so heavily loaded against defendants? And finally can the extraordinary burden placed on defendants be squared with the requirement (unchallenged) that a defendant must be proved guilty beyond a reasonable doubt in order to be convicted?

A paragraph like this might cause a defense lawyer’s heart to flutter. So are you rejecting the rule that the burden shifts on appeal, that the measure of sufficiency is no longer the irrationality of the fact-finder, but a mistake, a failure to achieve beyond a reasonable doubt? Or do you just not like the words they used to screw the defendant?

To repeat what I said at the outset, I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.

De minimis non curat lex, Judge. So you don’t actually disagree with the substance of the law, but it’s not your rhetorical cup of tea. We would all appreciate rationales explained in straightforward language. But if you think you’ve got some magic to make this happen, you hide it well behind your own flavor of brutal rhetoric. Screw the words; fix the substance.

27 thoughts on “Less Than “Great” Deference To Judge Posner

  1. Billy Bob

    SHG goes where no lawyer or law blogger has gone before. So it really is about words/language and not what actions or activities–legal or otherwise–they denote or represent. Interesting fellow, this Posner. We’re concerned about “legal jargon” as well, and wish there were some way to straighten it all out. Apparently not in this lifetime.

    As for suits, we have a thing about suits as well. We’ve owned a few, and seldom worn them. They just take up space in the closet. Now ties,…. that’s where we separate sheep from the goats.

  2. Patrick Maupin

    “Meaning” is often sought;
    “Plain” is when it’s not.
    Everyone agrees what was said,
    except the occasional dunderhead
    promoting contrary fantasy instead.

      1. Patrick Maupin

        The obvious interpretation is not enough,
        say some looking for deeper stuff.
        They spend their lives seeking,
        Instead of thinking
        Maybe it’s all duff cruft.

        But if you must seek,
        The meaning’s not plain.
        Which makes some forget
        Sometimes it is.

      2. Patrick Maupin

        Some write “plain” in an to attempt to extinguish
        stray thoughts that might distinguish
        the meaning found by the arbiter
        from the leaning preferred by the writer.

          1. Patrick Maupin

            For some reason, that wasn’t the response garnered by my attempted emulation of Barleycorn.

            1. SHG Post author

              He would have included a Fugs video or a disgusting cartoon image. You’re much too genteel to channel Barleycorn.

            2. John Barleycorn


              P.S. Speaking of Atila….if you CDLs (less our esteemed host most of the time) don’t figure out a way to put the pieces of your tribal together again while channeling some Balkans whoopass the Posner’s of the confederation are going to take their pontificating about “clarity” to even more absurd heights at your clients expense.

              You all can do what you got to do, but in the end just because Atila couldn’t completely take Constantinople doesn’t mean that you have to put up and play along with the “When in Rome…” script everytime you step foot inside the courtroom.

              Fuck the “Romans”! They ain’t up to no good anyway and heavens forbid what sort of boot-licking utopia of an empire they have always had in mind anyway.

  3. Froggy64

    As a realist, I believe that words have inherent meaning and that they correspond to something in the real world. Nominalists think they can play with words and have them mean whatever they want. Legal jargon is useful because it pins down words to a clearly defined meaning and a context. Nominalists can’t play around with legal jargon to make it mean what they want it to mean – which is why they prefer ‘plain language’ because ‘plain language’ is more amenable to redefinition when you don’t like what it means. Those are my principles, if you don’t like them … well I have others.

    1. SHG Post author

      FTFY: “As a realist, I believe in the Tooth Fairy.”

      The consistent use of words and phrases allows us to bring as much clarity as possible, but if you think that means they’re “pinned down words to a clearly defined meaning and a context,” you’re kidding yourself. They’re still just words, blunt and easily manipulable. Yes, better than the “plain language” vagaries, most of the time, but hardly clear.

  4. Froggy64

    Tooth is clear.
    Fairy is clear.
    Tooth Fairy is clear.
    So the meaning of the phrase “I believe in the tooth fairy” is clear.
    (This says nothing about the existential import of the term ‘tooth fairy’. ‘Tooth Fairy’ corresponds to a concept that is real and understadable, whether or not she exists.) Words have an inherent meaning and correspond to concepts. What’s there to fix?
    Of course the meaning of words evolves with use, but the concepts they refer to are real. The use of technical jargon helps ensure that words continue to refer to the concepts they are used to designate, rather than being changed to refer to other concepts and so smuggle in a change. Of course it’s not infallible, nothing human is, but it’s a darn sight better than ‘plain language’ which is much more easily manipulated.

    1. SHG Post author

      Yes, it’s “a darn sight better.” I tried to communicate that, but apparently my words were inadequate to the task.

          1. Froggy64

            Do you mean you didn’t say ‘we agree’ or didn’t say ‘it was my fault for not explaining myself clearly in the first post’? If the former, in what essential aspect do we disagree?

  5. Jim Tyre

    I have bespoke suits and off the rack suits. They are not the same.

    Next, a special weekend edition in which Scott does the runway walk wearing his various suits.
    (One hopes not.)

    1. SHG Post author

      Sure, give me a great idea, then make me feel all stupid about doing it. You are a passive aggressive bully.

  6. mb

    Lawyers might look a little silly with all their specialized jargon, but what really annoys me is non-lawyers fucking up evidentiary standards. What the fuck is “beyond a shadow of a doubt”? Since when do doubts have the opacity to cast shadows? What would it mean to be “beyond” these shadows? And why do so many people feel the need to try and quantify the evidence needed to be “clear and convincing” as a percentage? It’s not as though they have access to their own certainty in a form which can be measured and divided by one.

        1. Jim Tyre

          Some legal standards couldn’t be clearer.

          We will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5 week old, unrefrigerated, dead fish.

          S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. [but not Posner] 2001)

  7. MarK M.

    Posner’s a poseur in this matter. We have to work through these words; they give format and guidance for our permutations necessary to show why the irrelevant hearsay crap the trial court allowed in was not “harmless.” the “term of art” “substantial right” (for example) has a meaning which can be (verbosely) explained, dammit, and any more shuffling of the deck by the prosecutors in black robes moves the goalposts even farther away from obtaining even the semblance of a “fair” trial for those citizens whom the weight of the government falls upon. Although it won’t happen, Posner’s apparent desire to write appellate opinions in layman’s language–replete with the sloppy lack of specificity which that type of communication entails–would further provide the cover appellate judges would relish in their desire to backstop the state, be a member of the team, and “get the bad guys.”

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