The Judge and the Republic

U.S. Senator Roman Hruska, despite his patrician-sounding name, is most famous for his praise of the common man. Hruska, a Nebraska Republican, made the following remark on behalf of Judge Harrold Carswell’s 1970 nomination to the Supreme Court:

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?

Like Judge Carswell before him, Judge Richard Posner is one of the very few Americans honored with a lifetime appointment to the federal courts of appeal. And like Judge Carswell, Judge Posner is one of the even smaller minority ever considered for (though never appointed to) the Supreme Court.

Yet unlike Carswell, Richard Posner could never be accused of mediocrity. In many respects, Posner is a man—and judge—of surpassing excellence. Telling the story of this excellent man is the work of William Domnarski’s biography, which is simply and aptly entitled Richard Posner.

The first and only child of Jewish immigrants, Posner was born on January 11, 1939. Due to his extraordinary mental acuity, his parents’ enormous personal investment in him, and his remarkable diligence, Posner went from academic glory to glory. Among his classmates in wealthy Scarsdale, New York, he was by far, and by all accounts, the best student of his class—so superior that when his geometry teacher fell ill, the school’s principal asked the teenaged Posner to teach the class.

As Domnarski relates, Posner wore his superiority lightly—bearing a mild temperament and self-deprecating humor (he coined the phrase, “the Poze knows”). Perhaps for this reason, his classmates responded to his excellence with admiration instead of envy. When Posner was appointed teacher, some of them recalled, he inspired the same respect paid to a credentialed adult.

The anecdote is somewhat reminiscent of Plutarch’s account of Cicero’s school days:

His natural talent shone out clear and he won name and fame among the boys, so that their fathers used to visit the schools in order to see Cicero with their own eyes and observe the quickness and intelligence in his studies for which he was extolled, though the ruder ones among them were angry at their sons when they saw them walking with Cicero placed in their midst as a mark of honour.

Skipping his last year of high school, a 16-year-old Posner entered Yale, where, in each of his eight semesters, he was at or near the top of his class. An English major, he was an extraordinarily proficient writer; he prepared not only the usual essays and term papers, but also many contributions to various student publications, and a 321-page senior paper on William Butler Yeats. Upon graduation, Posner proceeded immediately to Harvard Law School. Once again, he proved first among unequals: president of the law review, highest grade point average of his graduating class.

His post-graduation ascendance seemed relentless. He started by clerking for Justice William Brennan, then advanced to the U.S. Solicitor General’s office, and then served for a year on President Johnson’s taskforce on telecommunications policy. At age 29, he entered the legal academy (almost) at the top: he taught first at Stanford, and next as a tenured position at the University of Chicago—where he taught through the 1970s. During his decade at the University of Chicago, Posner achieved remarkable honor and profit. The honor came from his extensive publications. Most notably, he founded and edited the Journal of Legal Studies and authored the Economic Analysis of Law (now in its ninth edition).

The central thesis of Posner’s economic analysis was simultaneously descriptive and prescriptive: He described the centrality of wealth-maximization to the decisions of legal actors, including lawmakers and also judges, even as he prescribed that judges should undertake this quantitative approach in a more candid, more deliberate, and more proficient manner. He wrote that economics was a “practical tool of analysis with a remarkably broad application to the varied problems of the legal system.” Judges already use economics—they should do it better.

Posner’s profit came mainly from his very successful consulting business, especially through the firm Lexecon Inc., of which he was cofounder. He and his colleagues provided corporate clients with economic analysis on antitrust and regulatory issues. In 1981, when Posner left Lexecon, it had annual billings of $5 million, and his partners bought out his interest for $400,000 (over $1 million in 2017 dollars).

He left Lexecon and the University of Chicago to join the U.S. Court of Appeals for the Seventh Circuit, as one of nine appellate judges appointed during President Reagan’s first year in office. Until announcing last week that he would retire, he was the only Reagan appointee still on the bench. For three and a half decades, Posner has been a prodigious author of influential judicial opinions. By his second decade as a judge, he had established himself as by far the most influential member of the federal judiciary after the justices of the Supreme Court.

Among his contemporaries, he has surpassed all others in the number of citations by other judges and scholars. For instance, Domnarski notes that Posner’s “headnotes,” as identified by the Westlaw system, have been cited by other judges 213,474 times—nearly double the citation rate of his nearest competitor, Judge Frank Easterbrook. At the same time, Posner has become a prominent public intellectual—without comparison among federal judges and, again, outdone only by members of the Supreme Court.

One might think that this undisputed first among unequals and valedictorian of the courts of appeals would be gripped with envy and frustration at not making it to the Supreme Court. Not so, his biographer indicates; for Posner’s primary ambitions have been trained not on “the Supremes” but on intellectual reputation and influence. He has candidly explored such radical topics as the benefits of a baby-selling market—something an aspiring justice would never have done. If Posner has experienced  frustration, it would be that his influence on the broad world of ideas has not been as profound as he has wanted it to be.

As Domnarski shows, Posner has, throughout his life, displayed a consistent set of character traits. He is, first of all, fiercely competitive, consciously attempting to rival the legacy of Learned Hand and Henry Friendly, probably the most preeminent judges of the courts of appeal since their establishment in 1891. In sheer quantitative terms—number of publications and citations—Posner has indeed surpassed these forerunners.

Second, Posner has displayed the moderately swaggering style of a man comfortable in his place. On the bench, he feels at liberty to cultivate an unorthodox, informal manner. He has a “flair for casual language, even slang,” and makes deliberate digressions—“adventures in dicta” that he cares not to disguise. Judge Posner has a unique penchant for exclamation points.

Third is the quality of the Renaissance man. His excellence is both literary and quantitative. Issuing from his pen have been volumes and volumes of high-quality prose defending and elaborating his quantitative theory as to how judges do (or should) decide cases. Judge Posner is a man of many (intelligent) words.

Fourth, he has been enormously industrious. At the Solicitor General’s office, he frequently finished his assigned work and then asked to be given more briefs to prepare. During his first decade on the Seventh Circuit, he unsuccessfully sought a bigger caseload from the chief judge at the time.

Fifth, he has little patience for mediocrity. This impatience, coupled with his loquaciousness, has led Posner to sharply criticize his colleagues, whether in the academy, the bar, or the bench—especially for their lack of intelligence and diligence. Judges and lawyers should: work nights and weekends, write their own opinions (rather than relying on clerks), study and even master quantitative methods, and openly use such methods in resolving their cases.

Throughout the book, Domnarski subtly but clearly connects Posner’s personal attributes with his judicial philosophy. Given Posner’s astonishing energy level, his excellence in language and quantitative analysis, and his impatience with mediocrity, it is not surprising that he has been inclined toward a complementary judicial philosophy.

Thus it is almost natural that Posner should say that judges should get better at math and science—and should use what they learn in deciding cases. Trial judges, he remarked, need not, like “wallflowers” or “potted plants,” rely exclusively on the evidence presented by the parties, but may and should “test the strength of a party’s statistical evidence by determining how sensitive is the design of the sample—a standard method for evaluating statistical evidence.” Judges need to keep up-to-date with the “technological and scientific advances that figure in litigation.” Hence, he whacks judges and lawyers, in one case, for failing to test a party’s regression analysis, and in another, for failing to consult the medical literature in assessing the severity (or lack thereof) of a prison inmate’s hypertension.

Judges, in short, ought to be more like Posner.

Further, given the breadth of his intellectual talents, it is almost natural that he would view the judicial office as broad enough for all of them. For Posner, the judge is no mere law reader and applier. Indeed, for a man of his excellences, it must seem utterly incongruous that he should submit to the legislators’ mediocre verbal formulations and ham-handed determinations as to what will serve to maximize wealth—which, for Posner, is the purpose of law. Posner thus has rejected textualism in favor of purposivism—where the judge applies a legislative purpose, of which the text is merely a poor expression.

More recently, Posner has discerned a purpose where the legislature has not only expressed itself poorly—but too slowly. In a recent case, Posner concluded that the word “sex,” as used in the Civil Rights Act of 1964, should be read to include “sexual orientation” not because such a reading was consistent with the legislative text, nor because the lawmakers meant to say “sexual orientation,” but because judges should revise the statutory text as to “infuse the statement with vitality and significance today.”  The substitution of this updated purpose for the old legislators’ purpose Posner calls “judicial interpretive updating.”

This recent development is, in truth, consistent with his longstanding ideal of the judge: as one who makes decisions consistent with the general welfare without being bound down, inflexibly, to legal text or precedent. Instead, the judge should “aim at the decision that is most reasonable, all things considered, where ‘all things’ include both the case-specific and systemic consequences.”

Vested with such a broad responsibility, the appropriate judicial posture is not submission but audacity. Judges should be not merely “scientific and descriptive” but “bold.” The boldness of the scientific judge suggests that the judge has the virtues of the inventor, or even of the avant-garde artist. As Posner said in a 1993 interview, judges should “recognize the large creative role that is thrust upon us-and decide boldly.” Or, as he wrote elsewhere, judges should acknowledge that they are bold mariners “navigating the seas of uncertainty.”

For Posner, a leading feature of the ideal judge’s audacity is candor. He has repudiated texualism, originalism, and strict construction, not only for reducing the judge to playing a submissive, even passive role—like a “potted plant”—but also for veiling the pragmatic creativity that he considers an essential judicial attribute. Domnarski summarizes Posner’s critique of the current Supreme Court by saying that their opinions “lack a necessary element for successful opinions—candor—as the Justices even when they reach decisions on pragmatic or prudential grounds don’t want to admit this.”

Domnarski does not address two obvious tensions in the life of his subject. First, Posner has preached wealth-maximization but has seemingly not practiced it. He easily could be much wealthier today had he stayed off the bench (or left decades ago). What he has apparently prioritized is not profit but honor (chiefly in the form of intellectual influence). Honor does not seem to be wealth, or at least, it is not readily convertible into wealth and otherwise escapes easy quantification.

Further, honor is a good that is difficult to maximize across a society; while the size of the wealth pie can grow, the honor pie seems to get smaller as the number of people increase. As Posner knows as well as anyone, only one person can be at the top. Perhaps it could be said that through his realism, Posner has sought not merely to describe but to transcend the purportedly “real” world.

Second, Posner’s judicial philosophy does not square easily with the federal judicial oath he swore. In 1981, he promised to “administer justice without respect to persons, and do equal right to the poor and to the rich” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . agreeably to the constitution and laws of the United States.”

A chief principle of this oath is equality between the rich and the poor. But Posner’s approach does not foster such equality. There simply are not enough Richard Posners to go around, so the poor generally will only have mediocre lawyers—those who lack the diligence or intelligence to become familiar with statistics, medicine, or other sciences—and still less, unable to participate meaningfully in considering “all things” as Posner proposes. The poor are thus at a terrible disadvantage in Posner’s dynamic, avant-garde courtroom.

The poor are better off where the procedural and substantive rules are fixed, predictable, anachronistic . . . and boring. The poor are better off where the judges are similarly boring, or at least are the sort of judges with sympathy for the middling lawyer. It is perhaps the chief benefit of traditional Anglo-American procedural law, with its emphasis on regularity and precedent, that it makes justice somewhat more available to the poor. Such equality, however, may not achieve the most pragmatic result, all things considered.

A second principle of the oath is fidelity to the laws and Constitution of the United States. But Posner does not seem to preach or practice such fidelity. By his account, he is indeed faithful to the general welfare—all things considered. Still, that is not fidelity to the laws, for he has assumed a supra-legal authority to enforce some purpose not found in the law’s actual words, because the words were either poorly chosen or chosen too long ago by people who lack Posner’s breadth and depth of mind.

Conceding, as seems right, that Posner is indeed a man whose intellectual excellence surpasses that of nearly all members of Congress, it may be that he is simply too talented to be a mere servant of their laws. He may in other words be too smart to be a mere judge. The idea of a philosopher as king may be absurd, as Plato suggested—but how more preposterous is the idea of a man of surpassing powers of thought serving as one of dozens of judges on an intermediate court of appeals?

But let us suppose that such a singular man can and should serve on the federal judiciary. Let us further suppose that he should go above, under, or around the (mere) laws wherever he determines, all things considered, that the general welfare requires it. In that event the candor that Posner endorses seems inappropriate—and quite dangerous to the common good. Such candor about supra-legal acts undertaken by the few would be harmful to the habits of obedience necessary to our legal system. G.K. Chesterton explained this danger a century ago:

If it comes to claiming exceptional treatment, the very people who will claim it will be those who least deserve it. The people who are quite convinced they are superior are the very inferior people; the men who really think themselves extraordinary are the most ordinary rotters on earth. If you say, “Nobody must steal the Crown of England,” then probably it will not be stolen. After that, probably the next best thing would be to say, “Anybody may steal the Crown of England,” for then the Crown might find its way to some honest and modest fellow. But if you say, “Those who feel themselves to have Wild and Wondrous Souls, and they only, may steal the Crown of England,” then you may be sure there will be a rush for it of all the rag, tag, and bobtail of the universe, all the quack doctors, all the sham artists, all the demireps and drunken egotists, all the nationless adventurers and criminal monomaniacs of the world.

Even if Posner is right—that the bold and creative judge should take the crown from time to time—other, less worthy persons are listening and might seek to follow his example. And some of them might have at their disposal far more dangerous powers—like the sword or the public purse. Or both. Prudence (all things considered) would seem to dictate that the excellent judge practice any necessary supra-legality with reticence, not candor.

The chief casualty of this reticence, however, would be the honor due to the excellent judge who, having quietly performed his exceptional service to the Republic, dies in obscurity. The name of such a judge would be preserved only on a long alphabetical list of federal judges—and thus, usually below Learned Hand, further below Henry Friendly, and well below such a mediocrity as Harrold Carswell.