Swan Song of a Great Colossus: The Latest from Richard Posner

Richard A. Posner, Seventh Circuit Judge and University of Chicago professor, stood astride legal scholarship in the late 20th and early 21st century like some latter-day colossus of Rhodes. He was the most influential founder of the most influential school of legal studies, law and economics. He has been cited more often than any other legal scholar—indeed, cited almost as much as the two runners-up, Ronald Dworkin and Oliver Wendell Holmes, Jr., added together.[1] He is a member of the elite club of greatest judges never to sit on the United States Supreme Court, alongside such worthies as Learned Hand and Henry Friendly.

In 1984, Friendly, probably the greatest appellate judge of his generation, wrote to Posner that he (Posner) was “the best judge in the country.”[2] He has been described as one of only two geniuses whom the late Justice William Brennan (for whom Posner clerked) had ever met,[3] and he is the author of several dozen books, more than 300 articles, and several thousand published opinions.[4]

Posner recently and abruptly retired from the federal bench, leveling a blast at his Seventh Circuit colleagues for failing to treat fairly those who represented themselves.[5] The Federal Judiciary: Strengths and Weaknesses is a similar effort critically to evaluate the federal courts, and, in some ways, is as puzzling as Posner’s unexpected retirement.

The reaction to this book runs the gamut. The highly respected conservative commentator and lawyer Ed Whelan (on Amazon, no less) calls it “a mishmash of half-baked ideas, a hasty copy-and-paste dump. Don’t waste your time or money on this mess.” But then again, the equally highly respected Georgetown law professor, Victoria Nourse, has a blurb on its back jacket that declares it to be “a delightfully iconoclastic critique of ideas many judges and academics hold dear, full of interesting, original, and wide-ranging claims for reform in the federal judiciary and law school teaching.”

The truth probably lies somewhere in between. This is clearly not Posner’s best book and, quite possibly, to even call it a “book” is somewhat misleading. It might better be described as a Posner-edited reader, as much of it is composed of reprinted or edited versions of judicial opinions, articles, and commentary, some but not all of which are by Posner. The judge is capable of extraordinary wit, literary grace, and brilliant insight, and these are not entirely absent here,[6] but much of this tome, sad to say, is bereft of these qualities. Indeed, this was the first Posner book I have read that was often a repetitive slog. It could have benefitted from trimming probably to half its size.

A Holmesian Legal Philosophy

This is not to say that there are not some important ideas here. Posner finds judges far too stodgy. He believes they would do well to abandon time-consuming practices like following the infamous Bluebook: A Uniform System of Citation (now in its 20th edition), and to stop denying that the judicial task is, as Posner’s mentor, Oliver Wendell Holmes, Jr. put it, a legislative one.[7]

Posner, whose late career, like Holmes’s, could best be described as “pragmatic,” does offer a succinct window into what he believes judges should be doing:

I’m a pragmatist . . . My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution. I would like to see judicial opinions written by judges rather than law clerks and characterized by brevity and candor and a quest for the sensible result.

He has little respect for those who differ from his Holmesian conception of the judicial role. Thus, he appears to go out of his way to condemn those who, like Justice Antonin Scalia, were committed to a traditional constitutional hermeneutics of original understanding. (See, for example, pages 140 through 146.) While Posner does have one or two kind things to say about Scalia’s writing and his personality,[8] ultimately he dismisses Scalia’s religious convictions, particularly Scalia’s acknowledgement that he actually believed in the devil, as “childish nonsense.”

The judge is, however, an equal opportunity excoriator, vouchsafing a few harsh words about Scalia’s colleague, Justice Elena Kagan, whom Posner reports Chicago chose not to retain on its faculty after she left to serve in the executive branch.[9] (She went on to become dean of the Harvard Law School before accepting an Obama appointment to the Supreme Court.) Kagan is dismissed in these pages as a mediocrity, like all of her fellow current justices, save, in Posner’s view, Justice Stephen Breyer and Justice Ruth Bader Ginsburg (“and Ginsburg may be fading”). Posner accuses Harvard law professor Adrian Vermeule of “self-regarding sophomoric disparagement of Judge Henry Friendly” and, in doing so, of being “bratty” and “ignorant.”

Posner hoots at Chief Justice John Roberts’s “eyebrow-raising claim” during his confirmation hearings that a “Supreme Court Justice is the equivalent of an umpire or referee, who does not make rules but merely enforces the rules given to him.” According to Posner, Justice William Rehnquist was a “genuine sourpuss” and was “utterly indifferent” to the discomfort he caused his colleagues from his chain-smoking.[10] Posner faults all judges and lawyers in that they “tend to look backward rather than forward. Their motto might be ‘We’ve always done it this way.’”

Merciless in his criticism of “textualism” and “originalism,” he proclaims himself an acolyte of the

creed of legal realism (equivalently of legal pragmatism), the creed embraced and refined by Holmes, Brandeis, Cardozo, Jackson, Hand, Friendly, Traynor, and other great judges, and by great academics such as Karl Llewellyn, Edwin Patterson, Felix Cohen, Grant Gilmore, and Edward Levi, as well as great philosophers who dabbled in law such as John Dewey and Richard Rorty.

But those of us who think this crew did much to kill the American ideals of the rule of law and that ours is a government of laws, not men, might not agree with Posner’s paean to them, which this book ultimately is.

“Playful, but with a Streak of Cruelty”

Still, some of the judge’s bracing expostulations, such as his being “troubled by the self-satisfaction expressed by many law school deans and law professors,” are right on the mark. Posner once, with great insight and accuracy, described himself as much like his pet cat: “I am cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”[11] He ends this book by quoting what “the great British (half-Irish, half-German) poet novelist, critic, and classicist” Robert Graves had said about his extraordinary 1929 autobiography, Good-Bye to All That, a book that declared the passing of the remarkable pre-World War I British Empire. Graves “called it a ‘quite ruthless’ book, though written ‘without indignation.’”

So, apparently, is this one. Legal realists will find much here to admire. Those of us who hope the law can be something more than applied politics, economics, sociology, or pragmatism, not quite so much.

[1] Larissa MacFarquhar, “The Bench Burner: How Did a Judge with Such Subversive Ideas Become a Leading Influence on American Legal Opinion?,” New Yorker, December 10, 2001.

[2] William Domnarski, “The Correspondence of Henry Friendly and Richard A. Posner, 1982–1986,” American Journal of Legal History 51 (2011), 395, 400.

[3] Stephen B. Presser, Law Professors: Three Centuries of Shaping American Law (West Academic Publishing, 2017), p. 311. The other was William O. Douglas.

[4] Law Professors, p. 300.

[5] See, for example, Debra Weiss, “Why did Posner Retire? He Cites ‘Difficulty’ with his Colleagues on One Issue,” ABA Journal, September 7, 2017.

[6] See, for example, p. 120: “Justice Holmes’s description of the Supreme Court Justices as ‘nine scorpions in a bottle’ was profoundly mistaken; they are a litter of cuddly newborn kittens.”

[7] For Posner’s admiration of Holmes, see p. 305 of Law Professors.

[8] See, for example, p. 412 (“Credit should be given to Scalia for his excellent writing style, his sense of humor, his independence, and above all his surprising concern with the rights of criminal suspects and defendants.”)

[9] Posner reports (p. 401, note 6) that Kagan “sought reappointment by the law school when the Clinton administration ended, but the law school declined to reappoint her.”

[10] I only met Rehnquist twice—once when I unsuccessfully interviewed for a clerkship in 1971, and, many years later, when he came to speak at Northwestern, but he struck me both times as a caring and amiable fellow.

[11] Quoted in Law Professors, p. 308.