I’ve never had strong feelings about now-former Seventh Circuit Judge Richard Posner’s opinions. When I could use them to advance my client’s cause, I did. When I couldn’t, they faded into the mist. But as judges who weren’t on the Supreme Court go, Posner was considered special.
Judge Richard A. Posner, whose restless intellect, withering candor and superhuman output made him among the most provocative figures in American law in the last half-century, recently announced his retirement.
Adam Liptak describes him kindly. Others suggest that he became overripe and started to rot.
“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.
“I realized, in the course of that, that I had really lost interest in the cases,” he said. “And then I started asking myself, what kind of person wants to have the same identical job for 35 years? And I decided 35 years is plenty. It’s too much. Why didn’t I quit 10 years ago? I’ve written 3,300-plus judicial opinions.”
I fully share his feelings about doing the same thing for too long, and have said as much. Then again, that it took him until six months ago to realize something so obvious, and obviously problematic, suggests that he wasn’t the intellectual his supporters suggest. If anything, he sounds kinda slow-witted, both in his epiphany as well as his grasp of the problem.
He’s certainly right that unrepresented people are treated like dirt by the system, but then, there’s a reason lawyers exist and a reason why 99% of pro se, hand-written, incomprehensible gibberish isn’t received with appreciation. Posner’s future plan is to help the lawyerless, a lovely sentiment. I wish him well deciphering the craziness of a thousand pro se habes over the lack of deliciousness of nutraloaf and newfound religious beliefs.
But we were forewarned, by deed and word, that there was something more nefarious, more outrageous, lurking in the back of Posner’s head. On his way out the door, he spelled it out as clearly as possible. He was a lawless judge.
He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
When assuming the bench, one takes an oath to uphold the Constitution. Granted, this is pretty much a pro forma oath when taken, but it’s not without purpose. If we don’t drive on the right, we crash. If there isn’t a rule requiring us to do so, we crash. If it was up to Posner, we would crash.
Many lawyers, and much of the public, believe what he says to be true, that judges first ask themselves what outcome they prefer in a case, and then get to work coming up with a legalish-sounding rationalization to support it. If the Supreme Court decisions back it up, great. Cite them, toss in a cool quote, and boom, you’re set. If not, make up some detail to distinguish the decision and circumvent it. Either way, you’re golden, getting the outcome you desire and wrapping it up in the pretty black judicial ribbon.
This is crap.
Most judges understand and appreciate that the game of American life can’t be played without rules. And they do not either turn to Posner and ask, “hey Dick, what do you think would be a “sensible outcome,” or listen to the voices in their head not silenced by Zoloft and come up with their personal law. There are certainly vague areas, tons of ambiguity, and plenty of room based on specific facts and circumstances for judges to rule in accordance with their sensibilities of right and wrong. But Posner’s “screw the law, I rule whatever feelz right to me” is bullshit.
Will other federal judges, like children seeking their mom’s permission to jump off the roof, take Posner’s words to heart? Unlikely. They’re big boys and girls of some degree of legal intelligence. They neither seek Posner’s wisdom nor permission to behave lawlessly. They understand that the extant law, even if they disagree with it, guides our ability to know what to do, how to behave, where the lines are drawn and which side to stay on.
What judges will not do is accept whatever outcome strikes Posner’s sensibilities as being right in lieu of law. And who made Posner King of the Universe anyway?
But where Posner’s lawlessness will create trouble is in the minds of people who share his belief that right and wrong are whatever they decide they are, whatever their feelings tell them they should be. Irrational? Baseless? Dangerous? So what? Posner says law is malarkey and that’s what they want to hear. That way, they can make up whatever they want and believe that this former judge, this “restless intellect,” says they’re right.
To his detractors, Posner offers two pigeonholes. The first is the sincere but slavish lemming to the law:
Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”
“A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”
And then there are the evil detractors.
He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”
The irony, which should be obvious to anyone of a lesser intellect than Posner, is that his “reactionary beasts” are him, except they have different ends if not means.
Whether this prolific writer, bomb-thrower, intellectual force majeure, will have a lasting impact on the law or the public psyche has yet to be seen. His work in law and economics was groundbreaking, but that happened long ago. Yet, he’s still Judge Richard Posner, important enough that Liptak and a few million lawprofs hung on his every word, including this parting apology he offers for lawlessness. He should not be forgiven.