Richard Posner’s Parting Apology

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.

33 comments on “Richard Posner’s Parting Apology

  1. Billy Bob

    To each his own, his own unknown. It’s a difficult job–being a judge–especially when a trained class of professionals is dealing with the vast numbers of untrained hoi polloi, i.e., the great unwashed. If the robed one cannot deal with the hand-written petitions, barely legible and facially meaningless, well then he should step down. If you’re not working up a sweat, well then, you’re not working. We’ve always felt that the legal profession, judgeships and so on were reserved for those in the population incapable of or unwilling to perform real work. Even doctors perform real work. Lawyers and judges live off the fruits of others’ labors. They contribute zer0 to the GDP, absolutely nothing. They add to world’s miseries, as if there were not already enough miseries out there.

    There are multiple reasons why us civilians hold lawyers in such low esteem. (At the very bottom of the polling numbers.) And why judges have to wear black robes down to their ankles and sit on high lecterns surrounded by armed marshals. All Rise! Give me a break? Judge Posner is likely no better, nor any worse than any other judge. It’s a sloppy world out there. Imposing order on it is an impossible, thankless task, doomed to failure. We forgive Posner his verbal sins and encourage him in his next career.
    Finally, you’re doing a heck of a job there, SJ. It’s not often that we disagree with you. However, when you judge a sitting judge harshly, well let me say this about that,…

  2. PseudonymousKid

    Dear Papa,

    You win. Gramps went fully off the rails. Bashing the Supremes was hip, but this is square. A judge with open contempt for the law shouldn’t be a judge. A lot of use that intellect did in service of the golden shovel. Why admit to something like that even if true? Does he want to tear the whole thing down? It just wasn’t pragmatic.

    So what if you cynically believe that everyone, not just judges, justifies everything they do and say and want after the fact? Keep that shit to yourself. It isn’t useful. The wizard of the 7th Circuit turned out to be just another guy behind a curtain. Great.

    Best,
    PK

  3. Richard Kopf

    SHG,

    A long time ago, in a culture far away, a Court of Appeals judge, who, like Posner, should have sat on the Supreme Court, addressed the question of what judges of “inferior” courts are bound by their oath to do. Rejecting the Posnerian notion of treating precedent in a cavalier fashion, that judge, “a reactionary beast” if there ever was one, said it best:

    The Supreme Court has decided that it may create new constitutional rights and, as judges of constitutionally inferior courts, we are bound absolutely by that determination. The only questions open for us are whether the Supreme Court has created a right which, fairly defined, covers the case before us or whether the Supreme Court has specified a mode of analysis, a methodology, which, honestly applied, reaches the case we must now decide.

    Notice the words “honestly applied.” Posner openly suggests that inferior court judges should not be constrained in that way. For all his brilliance, Posner’s view should be too much even for a realist judge (like me) who nevertheless believes that faithful adherence to the judicial hierarchy (precedent) is the only truly democratic solution to the ever present threat of judicial lawlessness.

    When, in 1992, I made reference to the foregoing quotation, naming the judge who wrote it, in my Senate questionnaire, my handler from DOJ, who reviewed the questionnaire before submission, had a fit. The sentiment was perfectly fine I was told, but I was strongly advised to rewrite the answer to eliminate the quote and its author. I could say the same thing I was told, but the judge and the quote were verboten.

    To my shame, I rewrote the answer. And I did so not because I disliked sailors who were homosexuals. I wanted to be a judge. Confirmation followed.

    Scott, no doubt, you know the name of “the reactionary beast” and the case to which I have just referred. I wonder whether your readers do? Should they care about that judge and the opinion he wrote? Yes, I think they should if they have any interest at all in the proper role of judges on inferior courts in a democratic society.

    All the best.

    RGK

    1. SHG Post author

      I do, indeed, Judge, and your handler was, of course, absolutely right to advise you against naming the judge who wrote those words as it would likely have been the kiss of death.

      1. Richard Kopf

        David,

        As a Millennial, you have a Constitutional right, found in the emanating penumbras, to be smug.* All the best.

        RGK

        * That is a universal truth even in the fatherland.

    2. Jim Tyre

      Judge Kopf,

      You may never see this – SHG would be wholly justified in trashing it as way off-topic – but wow did that bring back a specific set of memories.

      Steve Bomse argued the case for the appellant. In the same general time frame, I was taking my fist radical free speech case to the California Supreme Court. I thought I’d have no problem getting plenty of amici, but Steve, representing ACLU-NoCal, was the only one who did. A mainline corporate antitrust lawyer by day, he was a radical left lawyer by night, when that description meant something good. Great guy, terrific lawyer, wrote a wonderful amicus brief. (We won 7-0 on the more important issues, lost 3-4 on the rest.)

      And yes, I understand why you were advised at the time not to mention that case.

      1. SHG Post author

        Are you kidding? Who can ever get enough of your (forbidden here, but only for mere mortal lawyers) war stories, which are far more fascinating than anyone else’s? Some days, I sit here wondering what tangential (at best) bit of personal or pedantic lore you will impart. Who wouldn’t?

    3. John Barlycorn.

      That must be the same guy who fired Cox because the President’s prestige was being challenged in the Middle East at a  time when the President needed to assert a great deal of “moral and physical authority”. And something or another about a certain individual and national TeeVeee…fucking with the Presidents moral mojo at the “wrong time”.

      P.S. If only the unnamed judge would have shaved that pathetic beard of his before his confirmation hearings… oh well, I guess we will never know. But I don’t think the nation lost too much, as it is highly unlikely he would have let it mature, even if he got a seat, anyway.

      RIP “unnamed judge”, perhaps one day the  Robed Rider from Nebraska will tell us what he really thinks before he gets all sentimental on us.

      P.S.S. In case you were wondering, I think the unnamed judge should have married a Lutheran the second time around which in my minds eye would have greatly increased the probability and social acceptance of a Lutheran anarchist and a widowed Amish woman falling in love on a buggy ride one day.

      But the last time I checked (a week and a half ago) with my sources at Yale and Harvard Law there still hasn’t been even one applicant who was is result of a Lutheran anarchists seed born to a widowed Amish woman.

      Maybe next year…

      BTW, when you and the esteemed one get together and write that book, are you two gonna burn a few paragraphs on the  unnamed judge and Posner twirling or yield the twirl and just work in some twerking reference to scare the children?

       https://youtu.be/FtVllgTPyfk

      1. Richard Kopf

        JB,

        You write: “I think the unnamed judge should have married a Lutheran the second time around . . . .”

        I once had occasion to dine with the second wife. She had formerly been a nun. So far as I know, at least now, Lutheran nuns don’t exist. Such an idea might even be heretical–to Lutherans.

        In any event, she was great fun. She was witty and a good conversationalist. She was also very smart and kind. Her bearded husband sat nearby chain smoking. I like people who chain smoke. He didn’t say much, however. I kept waiting for him to articulate 95 theses. He didn’t. Perhaps he was the one who needed to become a Lutheran.

        All the best.

        RGK

        1. John Barlycorn.

          I hope Mary Ellen takes no offense to my remarks as I am sure she was more than capabale of trimming her sails for the  conversation or otherwise. For that matter, and for all I know, she might have even considered  sails for the lazy when a good kitchen table conversational regatta was in order. Former nuns don’t fear no stinking oars you know, kind or not.

          And let’s not forget the unnamed judge was an atheist until he converted to Catholicism in his mid 70’s and took his first baptism.

          Not many people may know that about the unnamed judge either.

          So anyway, no offese meant or directed at either of his fine brides. Just a little speculation on my part about what a “Lutheran Bride” might have brought to the barnacles upon the whales swimming around in his mind the second time around.

          Our unnamed judge also said the following :

          “A decline runs across our entire culture,” he wrote, and “the rot is spreading.”

          I guess? Pretty fucking dark though….besides I am holding out!!! And lets face it, judges have to deal with too much finality to stay truly sane, and the guy is dead, so I will give him a pass.

          Life is good… And lets face it, one of these days a buggy ride is gonna produce a worthy applicant or five for them there “schools” that makes all them Supremes supreme. Or something like that even though we all know it will be the mothers and the wise fathers who know when to laugh and when not to.

          In the meantime cheers to beards, even the trimmed ones, and all the brides who put up with the bullshit and bring their own!

      1. Eliot J CLingman

        Sure, the next time I name a star it will be “Curmugeon Greenfield” in your honor. You’ll be immortalized.

  4. Matthew S Wideman

    Judge Posner’s approach to hanging cases would fit very well in a rural county in Missouri. I am pretty sure I have heard a few judges expose a similar belief when settling a dispute over cattle.

    PK said it better than me. But, he comes off as a burnt out old timer who is ready to ride off into the sunset. Judge Posner seems more human to me now, than he did as that person who’s opinions I read throughout law school.

  5. Mark M.

    I think most criminal court judges who are elected think exactly like Posner, and don’t even blink about it. “They” love to declare that “constitutional rights aren’t subject to popular vote.” Although the vote is not performed directly, if you attend a motion to suppress hearing in most criminal district courts in Texas, it’s easy to see who’s the politician amongst the players.

      1. Billy Bob

        But it is somewhere, Mark Bennett-breath! Harvey did not have any trouble finding the great Lone Star State of Texas. There’s are reasons why hurricanes gravitate toward the southern tier of states, including LA and FL. But we’re not going into them during these troubling times of search, rescue and recovery. FEMA has a job to do, and we cannot interfere in the judicial process. Or did we get it backwards? We pray for the survivors, not only of Category 5 hurricanes but Category 5 cases of judicial misconduct in the Old CONfederacy.

        Reconstruction of the South is our most important product,… and making Exxon-Mobil and the pipeline companies rich again. Ha.

  6. kdk

    ““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”

    Not a terribly bright lad nor quick on the uptake. Or more likely someone took his parking spot and he decided THE SYSTEM HAS FAILED BIGLY.

    1. SHG Post author

      Kinda hard to square that “Posner’s such an intellectual” thing with “Posner had an epiphany that occurred to every first year lawyer.”

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