We should not invert the founding by viewing state courts as mere vehicles for the restoration of federal power.
Richard Posner started one of his many law review articles with a discussion of hypertrophy. Though mainly a medical term, he noted, “the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need.” Think of the pyramids. “Examples of hypertrophy in law abound,” Posner continued. He was not talking about himself, but he could have been.
A law professor, public intellectual, and federal appellate judge, Posner was a giant. He wrote some sixty books, on topics ranging from sex to asteroid strikes. He issued more than 3,000 judicial decisions (often writing out full opinions in an evening). He gave shape to the law and economics movement. He is the most cited legal scholar of all time. Meanwhile, he somehow found the time to blog, lecture, and sit as a trial judge.
For most of his career, and on most issues, Posner was a man of the Right. He wanted to free the markets and fetter the criminals. He was kicking holes in critical race theory long before it escaped the universities. He was a proponent of a restrained judiciary. Yet he was also subversive, eccentric, and intellectually prickly. He had no time for tradition, and he was a dogged critic of textualism, originalism, and legal formalism writ large. A vocal moral skeptic, he was that rare creature, a conservative postmodernist.
Posner was heterodox, contrarian, surprising, and heretical. “He writes not to defend himself,” an observer once said, “but to be accused.” Beyond all, he was prolific.
But that’s all over. Posner departed the judiciary in 2017 and laid down his pen. Last year, the world learned that he has been diagnosed with Alzheimer’s. He leaves behind a towering body of work, but also a gnawing question. What drove him to produce it?
The Holmes of Law and Economics
Maybe Posner’s mother knew, shortly after her son’s birth in 1939, that he was special. She started reading him Homer and Shakespeare when he was a toddler. His high school classmates called him “the Brain” and used the catchphrase “the Poze knows.” He entered Yale at 16—deciding against staying back a year, in an effort to get into Harvard, because he wanted to get on with his career. He majored in English, his thesis a 300-page study of Yeats’s late poetry.
Posner made the move to Harvard for law school. “It didn’t baby the students,” he wrote in 2013, “as Yale Law School did and does.” He was president of the Harvard Law Review. After graduating, he clerked for Justice William Brennan, discovering in the process that he wasn’t (“yet,” he assures us) much interested in the law. He found the Supreme Court an “unimpressive institution.” Following the clerkship, Posner spent a year at the Federal Trade Commission, where he became interested in economics. He then worked in the solicitor general’s office, arguing six cases before the Supreme Court—and becoming convinced that lawyers do not sway the justices’ decisions.
After another stint in the executive branch, he became a professor at Stanford. Though he spent only a year in California, it was a transformative one. He met the neoliberal economists Aaron Director and George Stigler, each of whom would profoundly influence his thinking. Director, in particular, would spend hours in Posner’s office, Director talking, Posner clacking on his typewriter. Director prompted Posner’s move in 1969 to the University of Chicago, the center of the free-market movement being led by Stigler, Ronald Coase, Milton Friedman, and Gary Becker. Posner would devote the next twelve years to “propagandizing for law and economics” (his words) in a flood of academic articles, books (including the seminal textbook on the subject, Economic Analysis of Law), and lectures. Along the way, he founded a law journal and a successful consulting firm.
Posner did not set out to become a federal judge. In the summer of 1981 he received a call (“out of the blue,” he says) from a friend in the Justice Department, who asked whether he’d like to serve on the U.S Court of Appeals for the Seventh Circuit. Hesitant at first, Posner grudgingly came around. For one thing, he felt a sense of political duty. “I had voted enthusiastically for Reagan,” he later recalled, “and I felt that if his government wanted me as an official I shouldn’t refuse.” At his confirmation hearing, one senator remarked that the views Posner had expressed in his work were enough to get him hanged. They were not enough, in those days, to keep him off the federal bench.
Posner’s innumerable judicial rulings offer an encyclopedic explanation, analysis, and critique of American law. They are also a monument to law and economics, placing consequences and incentives above legal abstraction and incantation. And they are a joy to read: informed and incisive yet accessible, unpretentious, and witty. Throughout his career as a judge, Posner also published a book or so a year, covering (among other things) moral philosophy, political theory, law and literature, the analysis of catastrophic risks, the role and impact of public intellectuals like himself, aging and public policy, the Clinton-Lewinsky scandal, the 2000 election, national security in the wake of 9/11, the financial crisis of 2008, and the work of his judicial hero, Justice Oliver Wendell Holmes.
At his best, Posner was Holmes’s direct judicial, intellectual, and cultural descendant. Both were staunch legal realists (though Posner prefers the term “pragmatist”). Both believed in severing law from morals. Both tended to practice judicial restraint. In describing Holmes, Posner described himself: An “astute student of human nature.” A “voracious, indeed obsessive, reader, of extraordinarily eclectic tastes.” Someone “serenely and steadfastly detached from the parochial values of his class.” A man with “a hard, even brutal, side.” A judge who, despite “lack[ing] a natural constituency among lawyers,” remains a “deeply respected and even venerated figure.” A “great jurist, a great prosodist, a great intellectual,” whose distinction “lies precisely in the infusion of literary skill and philosophical insight into his legal work.”
Efficiency Outweighs Justice
“The market,” Posner once opined, “like the jungle to which it is sometimes compared, is pitiless.” He meant it as a compliment. When sitting on the bench, he didn’t want to hear sanctimonious preaching about rights; he wanted to hear practical talk about effects. What ruling will best allocate society’s resources? When Apple asked Posner, sitting in the trial court, to block Motorola from selling phones that violated a batch of Apple’s patents, Posner didn’t care whether Apple had caught Motorola red-handed. Instead he became interested in whether smartphone patents, as a species, serve the public good. He concluded that they don’t—so Apple was out of luck. “An injunction that imposes greater costs on the defendant than it confers benefits on the plaintiff reduces net social welfare.” When Posner became a judge, Stigler gave him a scale on which a block labelled “Justice” is outweighed by a larger one labelled “Efficiency.”
In his heyday Posner was a dry-eyed adjudicator. It is not “the business of the courts,” he grumbled, to “spread good feeling.” The “harshness” of legal rules is often “redeemed by the clarity which they impart to legal obligations.” When dealing with criminals, he was a hanging judge. “Inadequate punishment can work a miscarriage of justice, just as excessive punishment can.” He was perplexed by the fact that prisoners have civil liberties. “Persons who want to exercise their religious rights without interference can do so just by not committing crimes punishable by imprisonment.” His economic orientation, his severity, and his remoteness could weave together in astonishing ways. “Prostitutes, like other people, seek income in order to purchase goods and services. It is not a defense to prostitution for the prostitute to say, ‘My fee is $100 and I plan to use it to buy milk for my children.’” (Richard Posner’s opinions contain countless passages that only Richard Posner could have written.)
Posner reveled in displays of Nietzschean flair. Of course professors are effete and sententious, he said; they are “tame because they have no claws.” Of course politicians are ruthless; “society is composed of wolves and sheep,” and the wolves—“a class of (mostly) men who are far above average in ambition, courage, [and] energy”—invariably “rise to the top.”
Progressives’ talk of social justice was, in Posner’s view, so much pious claptrap. Life is risky and unfair. It’s no use getting distracted by “reified abstractions” like equality, socialism, and democracy. Activists and radicals promise utopia but bring only weakness, conflict, anarchy, and ruin. Witness Posner on critical race theory. “By exaggerating the plight of the groups for which they are self-appointed spokesmen,” he wrote in 1997:
the critical race theorists come across as whiners and wolf-criers. By forswearing analysis in favor of storytelling, they come across as labile and intellectually limited. By embracing the politics of identity, they come across as divisive. Their grasp of social reality is weak; their diagnoses are inaccurate; their suggested cures (rigid quotas, 1960s-style demonstrations, transformations of the American spirit, socialism, poverty law practice) are tried and true failures. Their lodgment in the law schools is a disgrace to legal education, which lacks the moral courage and the intellectual self-confidence to pronounce a minority movement’s scholarship bunk.
The Posner who said this—the Posner of 1997, at the height of his powers—would be anathema at today’s elite law schools. That might have suited him just fine. He never thought much of “those whose only heroes and heroines are men and women who think just like themselves.”
No Judicial Dogma Sacred
“He’s a court of appeals judge, isn’t he?”
When he made that remark in 2012, Justice Antonin Scalia knew full well who Richard Posner was. Scalia had just published a treatise on statutory interpretation, and Posner’s review was long and withering. (The New Republic entitled it “The Incoherence of Antonin Scalia.”) Scalia was simply swatting back at one of his most persistent critics.
The definitive book on Scalia’s jurisprudence is subtitled “Text and Tradition.” Posner was dismissive of both. Regarding the latter, he wrote: “We are not slaves to our history, traditions, and precursors; they are our instruments.” If a custom does not noticeably help solve some problem in the present, it can be unceremoniously discarded. No surprise that Posner disdained originalism, the judicial philosophy, championed by Scalia, by which judges seek to apply the original meaning of the Constitution. “There are other reasons for obeying a judicial decision,” Posner scoffed, “besides the Court’s ability to display, like the owner of a champion Airedale, an impeccable pedigree tracing the decision to its remote eighteenth-century ancestor.”
As for text, Posner had little compunction about slipping around it. He took a dim view of laws and legislatures. Statutes, he believed, are generally indeterminate, contradictory, and even counterproductive. They’re “written in haste by busy people who often are neither able nor conscientious.” Unable to agree on what they want, moreover, legislators often deploy vague language, leaving it to the courts to sort things out. And anyway, the legislative process—buffeted as it is by interest group pressures—is not a reliable source of sound public policy. All in all, better for the judge to do what he thinks best—albeit with care and moderation—than to labor in search of a statutory directive that is illusory at best and demented at worst.
Posner was equally pessimistic about the conventional judicial process. Posner mocked what he called “legalism”—the idea that legal texts, closely studied, answer difficult legal questions. “In the cases that count,” Posner insisted, “judges cannot be legalists even if they want to be or think they are,” because the “orthodox” legal materials don’t supply an answer. Yet judges must decide, and so they make “a value or policy choice inevitably influenced by political ideology, career and personal background, and psychological factors.”
In brief, there was no judicial dogma Posner held sacred; no norm he wouldn’t cheerfully question. Not for nothing is one of his books called Overcoming Law.
Posner’s cynicism helps explain why Scalia could make his chosen retort. For all his brilliance, Posner is reputed never to have been seriously considered for the Supreme Court. According to one former White House advisor, Posner was done in by “his baby selling proposal”—a notorious 1978 law review article in which he applies economic analysis to the regulation of child adoptions—“his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics.”
Put another way, Posner’s failure to become a justice was overdetermined. His scorn for textualism and originalism was only the beginning. In the years following Posner’s casual appointment to the Seventh Circuit, political parties got serious about seeking Supreme Court nominees who are predictable, reliable, disciplined, and at least somewhat relatable. Posner was none of those things. In a 2001 profile in the New Yorker, he compared himself to his cat, saying, “I am cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.” Had the question at hand been “Why are you not on the nation’s highest court?” Posner could not have done better.
Awaken from a Slumber?
Over the years, Posner became more outspoken, more erratic, and more liberal.
“A pragmatist,” Posner wrote in 1995, “might have good pragmatic reasons for thinking that courts should maintain a low profile.” As late as 2008 he was still using principles of judicial restraint to recommend against the creation of a constitutional right of gay marriage. Yet by 2014 he was himself ruling, in an often caustic opinion, that such a right exists. The next year, when the Supreme Court followed suit in Obergefell v. Hodges, Richard “streak of cruelty” Posner called Chief Justice John Roberts “heartless” for dissenting. In 2017, when his court ruled that Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation, Posner not only concurred; he made a point of challenging the constitutional separation of powers. “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”
Posner had never been one to restrict himself to the issues and arguments presented by the parties. His opinions had always meandered, usefully but inappropriately, down whatever paths caught his attention. In his later years, though, he began to disregard fundamental tenets of judicial conduct. For instance, he took to supplementing appellate records with his own internet research. In a case about inflatable rats that some unions had placed by the side of the road, Posner delved into his personal experience. (“… my Chicago rat was only about three feet from MLK Drive … Here are [my] two photos …”) In a case about workers’ donning and doffing of sanitary gear, he bought the gear in question and timed a clerk putting it on and taking it off. (The dissenting judge was “startled, to say the least,” by this stunt.)
Toward the end Posner became a caricature. In a 2016 interview he asked, rhetorically, whether the Supreme Court’s nine justices are among “the thousand best lawyers in the country,” and then answered with an emphatic “No!” A judicial ruling need not “be supported by ‘reason,’ whatever that means exactly, to avoid lawlessness,” he told another interviewer in his final months on the bench. Most “legal technicalities,” he added for good measure, “are antiquated crap.” He urged judges to wield “common sense” (something he once derided, in the same breath as theology, for being untestable by observation).
Though some of his public statements were perhaps just the old Richard Posner turned up to 11, many of his rulings seemed to come from an altogether different person. In cases about prison conditions, voting rights, immigration hearings, government disability benefits, and more, he developed a passion for abstract rights and the little guy. This turn was most evident in his approach to “pro se”—that is, lawyerless—litigants. “The problem of litigation that generates social costs in excess of its social benefits,” Posner, deploying his trademark economics-speak, wrote in 1987, “is particularly acute with respect to litigation by indigents, since they cannot be deterred from suit by the prospect of having to pay their adversaries’ legal expenses should the suit be adjudged frivolous.” In another opinion from the same era, he was even blunter, opposing the court’s appointment of a lawyer for a pro se on the ground that the “merit of his case” should be put “to the test of the market” for contingency-fee representation. Yet in his final year as a judge he claimed to “aw[a]ke from a slumber of 35 years,” and started complaining that “most judges regard [pro se litigants] as a kind of trash.”
In late 2017 Posner resigned from the federal judiciary, established a legal clinic for needy clients, and began self-publishing pro se litigation manuals. Within two years the clinic folded, citing the fact that it was receiving a hundred times more requests for assistance than it could handle. Since it was “assisting the pro se litigants free of charge,” perhaps “it was inevitable,” the clinic conceded on its website, “that the demand would greatly exceed the supply.” Posner’s career closed with a final, grim return to economic rationality.
In early 2022 a man claiming to have worked at the clinic sued Posner for back wages. While running the clinic, Posner’s lawyers responded, Posner had lacked the legal capacity to enter a contract. They revealed that he had been diagnosed with Alzheimer’s a few months after hanging up his robe, adding that he had “long since been moved to a nursing facility.”
A Mixed Legacy
Posner left the law better than he found it. It is hard to say the same of his impact on the federal judiciary. On the contrary, he seemed to go out of his way to undermine and even ridicule it. Journalists, academics, politicians, and (last but not least) rogue actors within the judiciary itself have, in their varied ways, long been assaulting, eroding, and adulterating the American judicial system’s legitimacy. Posner’s “loose claims that judging is political,” lamented one prominent jurist, added “fuel to this fire at a time when the judiciary c[ould] least afford it.”
A federal judge has many weighty responsibilities. Surely one of them is to sustain, or at minimum not gratuitously and gleefully undermine, public faith in the Constitution and the courts. It’s unclear to what degree Posner grasped that he represented an institution much larger than himself. For that matter, this otherwise discerning man and his penetrating intellect seemed oblivious to the very nature of the judicial role.
The judicial power itself is rooted in the Constitution and judges’ oath to uphold it. A federal judge gets to be a federal judge because a particular text says so, and because he swears to adhere to that text, and the laws promulgated under it, as best he can. There will certainly be hard cases. But if a judge doesn’t take the text, along with its structure and history, seriously, approaching it with at least a modicum of solemnity, why should others respect the text, or what the judge says the text says, or the judge’s claim that the text permits the judge to say what the text says? Viewed in this light, Posner’s habitual rebellion against formalism, in both word and deed, looks like wanton self-indulgence.
Even apart from the problem of authority, Posner rebutted his own approach. He believed that judges should “br[ing] to their endeavors the open-mindedness, curiosity, intellectual breadth, imagination, willingness to reconsider their views in the light of new experience, and theoretical and empirical rigor and freshness characteristic of the better social and natural scientists.” This vision is not without appeal. But in the absence of anchoring principles—above all, the conviction that a judge obeys the Constitution and upholds the separation of powers—where does this free-floating pragmatism lead? The twists and turns of Posner’s judicial journey suggest that the answer is: “where one wishes to go.” Posner used to shun other pragmatists, such as Justice Stephen Breyer, for being overly active pragmatists. In hindsight it becomes apparent that he had no basis for doing so. His philosophy was open-ended and thus vulnerable to abuse—including, it turned out, by his later self.
“My wife sometimes compares me to the frenetic White Rabbit in Alice in Wonderland,” Posner said. He was a relentless, bordering on maniacal, worker. “I have a busy week ahead,” he once explained:
a day of hearing appeals, three two-hour classes on the law of evidence, an after-dinner speech Tuesday on civil liberties and national security—and a priority for Sunday was finishing up the draft of my speech. And finishing up a short paper on the economics of international law. And working on two articles that I am writing with an economist, one on presidential pardons (yes, there is a demand for and a supply of such things that economics can illuminate) and another on copyright law, focusing on an issue of considerable theoretical interest: Should copyrights be perpetual, rather than limited to the lifetime of the author plus 70 years? And on a book on legal pragmatism and democratic theory. And on a sixth edition of a textbook-treatise on economic analysis of law, my specialty. Since the fifth edition, published five years ago, hundreds of scholarly articles on the subject have been published, and I have to read some, skim others, and glance at the rest.
Surveying this frantic motion, you wonder—why did he do this? To what end this ceaseless effort? In service of what cause this furnace of energy?
“In the end Posner is his own best refutation.” That was David Brooks’s conclusion in a 2002 article picking apart one of Posner’s dozens of books. Posner was “not motivated by any impulse that can be captured through the reasoning of law and economics.” No rational actor would dash off such a sloppy volume. Posner wrote, Brooks surmised, for no better reason than that “human beings are social creatures who feel compelled to express their ideas.” Posner did what he did because he could not do otherwise. The Poze didn’t know what made his mind tick. He was a mystery, just like the rest of us.
Richard Posner was an original thinker, an accomplished jurist, a dauntless polemicist, and a piquant character. He was also impetuous, impolitic, and injudicious (of all things for a judge). His vast output is and will remain an endless source of insight and delight, its many shortcomings, as well as his, notwithstanding. As Posner said of Holmes, so we can say of Posner: he wasn’t perfect; he was only great.