Interesting Insights on Posner

The contrast between his polished, idea-driven, sometimes social-science-y prose about law and his blunt, gossipy talk is unexpected and disarming.

Interesting Insights on Posner

The contrast between his polished, idea-driven, sometimes social-science-y prose about law and his blunt, gossipy talk is unexpected and disarming.
“Now who would say, for example, that the nine Supreme Court Justices were the nine best lawyers in the country. That’d be preposterous.”
About the Supreme Court, he said, “You know they still have a spittoon sitting beside each chair on the bench? What kind of crap is that? Right?” And: “Now who would say, for example, that the nine Supreme Court Justices were the nine best lawyers in the country. That’d be preposterous. Now, what if the proposition was, well, they’re among the hundred best lawyers in the country. That’d be ridiculous. Among the thousand best lawyers in the country, out of a million lawyers? No! I think today’s Supreme Court is extremely mediocre.”
It’s startling to hear a sitting federal judge insult the justices on the record, but Posner’s view is that he gives the Court and its precedents the respect they are due. Posner’s favorite Supreme Court ruling to attack in the past decade has been District of Columbia v. Heller, the 2008 case in which, by 5-4, the conservative majority ruled that the Constitution’s Second Amendment protects an individual’s right to possess a handgun for self-defense.
To Posner, the decision and, in particular, the majority opinion by Justice Antonin Scalia, is “an example of motivated thinking”—thinking shaped by how he and the other justices in the majority wanted the case to come out. They used their own version of history as a basis for their interpretation of the amendment, he believes, even though, by his count, 14 of the 18 historians who signed friend-of-the-court briefs disputed that view. The justices did “what is derisively called ‘law office history,’” Posner wrote about Scalia’s historical account: “The derision is deserved.”
In 2012, when the Seventh Circuit reviewed an Illinois statute that prohibited people from carrying a gun that was loaded and ready to use, Posner wrote the opinion for the court striking down the law. (Posner’s judicial opinions from 1981 to 2007 are available online at projectposner.org.) Responding to a plea “to repudiate the Court’s historical analysis,” Posner wrote, “That we can’t do.” As a scholar, he could ridicule the Heller case and a later one applying the Heller interpretation of the Second Amendment to the states. As a judge, he was bound by the holding. Among Posner followers, his opinion in the Illinois case seems so faithful to Heller that it is tongue-in-cheek: “Twenty-first-century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”
Scalia and Posner equally appalled The Atlantic’s Supreme Court correspondent, Garrett Epps. He wrote, “Neither the Supreme Court nor the Seventh Circuit displays the slightest concern for the real-world effects of its decision. Instead, what matters is a kind of airless, abstract reasoning. To Justice Scalia, it is clothed in the garb of history; to Posner, it represents ‘pragmatism.’ In fact, that callous indifference to consequences—ahistorical and unpragmatic—disfigures both the Supreme Court’s Second Amendment cases and reveals a flip attitude toward the problems of those who must live their lives outside federal courthouses surrounded by metal detectors and marshals.”
One of the ways the jobs of Supreme Court justices and federal appellate judges differ markedly is that, in all but a tiny share of cases, the justices choose the cases they hear based on petitions for review, whereas appellate judges, in all of their cases, are required by rules of procedure to consider appeals from decisions in federal trial courts. That’s one reason that, of the 7,000 or so cases Posner has heard and the 3,140 or so in which he has written opinions, relatively few have produced blockbuster decisions or opinions. It’s another reason why he disses the Supreme Court: “You should take what comes,” he told Ronald Collins—overlooking the fact that it was Congress, in 1925, that gave the Court the discretion to pick its cases.
From the time he joined the Seventh Circuit until this past November, according to Sarah Ryan of the Yale Law library, the Supreme Court chose to review about 175 cases from the Circuit. Posner was on the three-judge panel in 60 of them, and wrote the majority opinion in 25. Of those 25, the Supreme Court upheld 52 percent of his opinions and overturned the rest. He wrote a dissent in nine cases, with the Court taking his position in five (reversing the Circuit). There have been a modest number of cases in which the justices have quoted him in a significant way by name as the author of an opinion. (The familiarity suggests that, among the nation’s 179 federal appeals-court judges, he is among the best known to them.) Seventh Circuit followers regard him as conservative on economic issues, libertarian on social issues, and, for the most part, moderate.
The most dramatic Supreme Court decision of the term that ended last June held that there is a constitutional right to gay marriage. Justice Anthony Kennedy’s majority opinion contains grand language about the Constitution’s promises of liberty, the centrality of marriage to the human condition, and individual dignity, but it isn’t clear about the steps in constitutional analysis he followed to reach the conclusion that marriage is a fundamental right for gay as well as heterosexual couples.
In a September 2014 opinion striking down state laws in Indiana and Wisconsin banning same-sex marriage, Posner did that admirably—before the Supreme Court’s ruling.
He wrote, “Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.”

To Hal R. Morris, a Chicago lawyer who teaches a seminar about the Seventh Circuit at Chicago-Kent Law School, what Posner decides and says about a ruling are usually less important than how he decides and says it. More than any other federal appellate judge, Posner apparently feels no compunction about doing his own research about the facts of a case before him—going outside the factual record of the trial his court is reviewing, to the great irritation of lawyers in the case and sometimes to his colleagues. Josh Blackman, a young law professor, blogs about this “judicial fact-finding run amok”—and the denunciation of it by Posner’s colleagues.
One 2014 case, for example, dealt with whether workers at a poultry-processing plant should be paid for the time it took them to remove and put on protective gear at the start and end of their 30-minute lunch break. The workers said it took 10 to 15 minutes; the company said two to three. Posner bought the gear and videotaped and timed his law clerks putting it on (95 seconds) and taking it off (15 seconds), for a total of less than two minutes. In his majority opinion ruling against the workers, Posner admitted that this was “a novel approach” and not “evidence”: “the intention was to satisfy curiosity rather than to engage in appellate fact-finding—but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break.”
The Seventh Circuit’s chief judge, Diane Wood, dissented and upbraided Posner: “I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge. As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56.”
The core of Posner’s self-defense is that the adversary system at the heart of American justice doesn’t work, because the job of lawyers is zealously to press their client’s case and not to help judges find the truth—so sometimes he has to find it himself. In another case last summer in which he relied on Internet research, Posner said it was “heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” Judge David F. Hamilton responded that Posner’s use of the evidence was an “unprecedented departure from the proper role of an appellate court. It runs contrary to long-established law and raises a host of practical problems the majority fails to address.” He went on, “Appellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts.” Posner’s judicial fact-finding is one reason some seasoned lawyers who practice before appellate courts find his judging reckless and irresponsible.
Posner’s judicial opinions, which he makes a point of saying he writes himself, reflect his confidence that he has a warrant to write about cases in his own way. They contain few footnotes, little jargon, even less cant, and almost no acronyms—in contrast to opinions of the vast majority of other appeals-court judges. They generally emphasize the facts instead of the law, to show the consequences of the court’s decision and, when necessary, to get around the obstacle of a judicial precedent by distinguishing the facts in that case from those in the current one. Unless it’s obvious, they explain the purpose of any legal doctrine on which the opinion rests and don’t announce the court’s decision until the end of the opinion, after he has explained the basis for it. He tries to be “practical and candid” and to avoid “solemnity and pomposity.” He generally succeeds.
He tries to be “practical and candid” and to avoid “solemnity and pomposity.” He generally succeeds.
In a widely noted example, he reversed field about laws requiring voters to show photo identification at their polling place after there was clear evidence about the laws’ negative impact. In 2007, in a 2-1 decision, he voted to uphold Indiana’s voter ID law largely because, he wrote, “there are no plaintiffs whom the law will deter from voting” and “the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.” By 2014, he realized that his surmise about motivation had been wrong and that voter ID laws are “now widely regarded as a means of voter suppression.”
In a dissent from the decision of the 10 “active,” or non-senior, judges on the Seventh Circuit not to reconsider as a full Court a decision upholding Wisconsin’s voter-identification law, he summarized why the law should have been struck down:
The data imply that a number of conservative states try to make it difficult for people who are outside the mainstream, whether because of poverty or race or problems with the English language, or who are unlikely to have a driver’s license or feel comfortable dealing with officialdom, to vote, and that liberal states try to make it easy for such people to vote because if they do vote they are likely to vote for Democratic candidates. Were matters as simple as this, there would no compelling reason for judicial intervention; it would be politics as usual. But actually there’s an asymmetry. There is evidence both that voter impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting. This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.
The opinions are crisply written, tightly organized, and brightly argued. They are easy to follow and a pleasure to read. They stand out among opinions by appeals-court judges the way Justice Elena Kagan’s do for the Supreme Court: they say simply why a ruling matters and are addressed to citizens as well as judges and lawyers. Posner’s are especially good at translating legal convolutions into clear-cut terms: penalizing the illegal sale of “incredibly light” LSD by the weight of the relatively heavier sugar cube that delivers the drug, he wrote, is like “basing the punishment for selling cocaine on the combined weight of the cocaine and of the vehicle (plane, boat, automobile, or whatever) used to transport it….”
That strength is most evident and eloquent when Posner is calling out hypocrisy in law-making and in judicial opinions that engage in legalism to uphold bogus justifications and their ill consequences. He did that in 1999 in a dissent from a Seventh Circuit decision that upheld Illinois and Wisconsin statutes making it a crime for a doctor to perform a so-called partial-birth, or late-term, abortion. The case dealt with an issue that the Supreme Court will address this term in one of its most politically charged cases: When is an abortion restriction unconstitutional because it is an “undue burden”—a substantial obstacle to seeking a legal abortion? In other words, when is a restriction designed to make abortion scarcer rather than safer, as it pretends to? Posner wrote:
I do not deny the right of legislatures to enact statutes that are mainly or for that matter entirely designed as a statement of the legislators’ values. Nothing in the Constitution forbids legislation so designed. Many statutes are passed or, more commonly, retained merely for their symbolic or aspirational effect. But if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women—and not only pregnant women who want to have an abortion. There is no exception for women whose physicians tell them you must have an abortion or die. It is true that if a “partial birth” abortion is necessary to save the woman’s life, the statutes permit this. But if her life could be saved by another type of abortion, even one that threatened her health—that threatened to sterilize her or to paralyze her—then the physician would be committing a felony if he performed a “partial birth” abortion.
The Jurist as Aesthete
POSNER’S OPINIONS are as combative as his scholarship in their efforts to persuade. To recognize what’s missing from them, it’s useful to read his writing about why judicial opinions should be regarded as a form of literature, which he addresses in his treatise Law & Literature, in its third edition. (To help teachers identify works for students to read besides the over-assigned Billy Budd, The Merchant of Venice, and To Kill a Mockingbird, he includes a list of 29 other works, beginning with Alice’s Adventures in Wonderland and ending with Franz Kafka’s The Trial.) He uses the term “rhetoric” to describe what opinions at their best contain, covering “the gamut of persuasive devices in communication, excluding formal logic.” How is it possible to persuade, without logical or empirical proof? He writes, “The answer is that in areas of uncertainty, areas not yet conquered by logic or science, we are open to persuasion by all sorts of methods, some remote from logic and science.” (“Some of Holmes’s best opinions,” he wrote, “owe their distinction to their rhetorical skill rather than to the qualities of their reasoning; often they are not well reasoned at all.”)
“The answer is that in areas of uncertainty, areas not yet conquered by logic or science, we are open to persuasion by all sorts of methods, some remote from logic and science.”
A common device of rhetoric is the “ethical appeal”—“the speaker’s attempt to convey a sense that he is a certain kind of person, namely one you ought to believe.” Another is the placement of a statement so it appears to be a conclusion, “suggesting that the writer has set forth premises that lead up to it,” even if “the preceding lines do nothing of the sort” and “instead they present an incantatory series of images.” A third is the withholding of provisos, or hedging, because “very few people have the courage of plain speaking, so when we hear it we tend to give the speaker a measure of credit.”
In writing about literature and its relationship to law, Posner uses a different voice, buoyant with affirmation. The examples bolstering his lessons come from great works of literary art—poems, plays, and novels. With the exception of “the ethical appeal,” the other examples of rhetoric mentioned above come from W.B. Yeats’s famous poem “The Second Coming,” which ends: “And what rough beast, its hour come round at last,/Slouches toward Bethlehem to be born?”
Among Posner fans and critics, it’s a truism that his ideas about the law have changed substantially over time. “Posner has evolved, because he has learned things and has studied things,” said Furman professor of law Lawrence Lessig, who clerked for him: “That includes a willingness to acknowledge he was wrong.” There’s also an axiom that his temperament hasn’t changed. Posner is as Posner was, regularly irascible, mercilessly critical, polemically arguing his cause. His temperament may not have changed, but if that’s so it has not stayed the same in the way most people think.
Posner’s insightful writing about his heroes, surely informed by his study of literature, provides some entrancing evidence of a sympathetic side. On Friendly: “There were five quite different Henry Friendlys: Friendly en famille—cold, taciturn, remote, and awkward; Friendly among his peers, mentors, clients, colleagues—tactful, personable, friendly, effective; Friendly in his dealings with his law clerks and with many of the lawyers who appeared before him—curt, grumpy, intimidating; Friendly in his judicial opinions and academic writings—formal, erudite, almost Teutonic; and finally Friendly in his correspondence—graceful, warm, generous, light—Bizet to the Wagner of his judicial opinions.”
On Cardozo: “Incorruptible, scandal-free, moderate, seemingly apolitical, not given to (visible) self-aggrandizement, Cardozo radiated character. This made it more likely that other judges, academics, and practicing lawyers would give his opinions the benefit of the doubt—thinking that if they were minded to disagree perhaps it was their judgment that was at fault, not Cardozo’s.” On Holmes: “Modern judges are quick to dissent in the hope of being anointed Holmes’s heir, but they lack Holmes’s eloquence and civility. Most of them do not realize that the power of Holmes’s dissents is a function in part of their infrequency; he was careful not to become a broken record.”
There is also a remarkable piece of evidence that Posner has led his double life since he was a young man. At Yale, after his junior year, he was selected for an exclusive program for a dozen or so seniors known as Scholars of the House. Each earned the liberty of spending his last year of college skipping regular courses and working on an individual sustained project. Posner’s yielded a 322-page book called Yeats’ Late Poetry: A Critical Study. The program ended a generation ago, but Scholars’ completed projects are readable in the Yale library’s Manuscript and Archives Room.
From the first sentence of the introduction (“I take it that the critic’s job in the first instance is to make people read, with intelligence and appreciation, the kind of things that they would not be likely to read otherwise”), the manuscript has the intellectual poise and psychological maturity of something written by a more seasoned writer. Posner was 20 when he wrote it and he wrote well, though he now says that he thought it was poorly written (and blames that on a year spent at the movies, at Yale’s Elizabethan Club, and on road trips to Vassar).
The volume called Last Poems was “virtually unknown,” Posner wrote, and it was his conviction “that the richest lode of Yeats’ poetry lies unexploited.” He aimed to exploit it by assessing the poems as a “book, the volume of verse, in which Yeats was accustomed to arrange a number of poems for publication.”
An oddity of Posner’s esteem for the late poems was that Yeats, according to the critic Hugh Kenner, did not arrange them in the book. So Posner focused first on “the last three books in which Yeats arranged the poems”: The Tower; The Winding Stair and Other Poems; and From “A Full Moon in March.” With that approach, he called attention to “some of Yeats’ finest poetic achievements,” cast “a little new light on his more familiar poems,” and made “a few suggestive generalizations about the defining qualities of Yeats as a poet.” Then he explored all of that “with examples drawn from Last Poems.”
Yeats’s overarching theme, and Posner’s, is the permanence of art: “behind theology, philosophy, the mystics’ vision of Divine Essence, an old man’s personal problems, love, the very laws of the world, stands art, especially literary art, poetry.” There’s a chapter about the Yeatsian Songs—generally interpreted as frolics and a kind of slumming on Yeats’s part—that explains why they were the opposite, another way for Yeats to find meaning, in addition to solace and beauty, in a world of obvious imperfection. Posner’s conclusion about Yeats’s poetry, the late poems in particular, is that it’s “joyous and exultant and free in a way unique in modern poetry—which is a thing largely of more somber hues.”
Posner wrote as a peer of professional critics: his Yale adviser, Cleanth Brooks, the most eminent New Critic in English and American literature, whom he chided gently for calling a poem “rambling” when, as a meditation, it could not be “so precise and rigorous” as logic; and Richard Ellman, Yeats’s prize-winning biographer, whom he credited with an insight about a poem, but chided for not erasing a “seeming incongruity” with that insight. It’s not hard to imagine Posner’s book finding a readership today—among Posner followers, perhaps among Yeats lovers and more widely—if it were published.
There are two Posners, his writing about literature makes plain: the ferocious reformer and the discerning aesthete, who understands the power of art—and has greater faith in its power than the law’s to represent the best of the human spirit. Here’s why he thinks that’s no enigma: “Well, what we value in literature is invariably created by geniuses, right? They’re the only ones who survive. But law, no. It’s created by mediocrities for the most part.” The contrast between his law voice and his literature voice is vivid. In writing to make law or reform it, Posner is sometimes combatting the conception of it he deplores. He is often combatting law itself. In reading and writing about literature, Posner restores himself for the fight.
Lincoln Caplan ’72, J.D. ’76, shares his Harvard Law School education with several of the people mentioned in this feature: William Brennan Jr., LL.B. ’31, LL.D. ’68; Ronald Dworkin ’53, LL.B. ’57, LL.D. ’09; Philip Elman, LL.B. ’39; Paul Freund, LL.B. ’31, S.J.D. ’32, LL.D. ’77; Henry Friendly, A.B. 1923, LL.B. ’27, LL.D. ’71; Oliver Wendell Holmes Jr., A.B. 1861, LL.B. ’66, LL.D. ’95; Elena Kagan, J.D. ’86; Anthony Kennedy, LL.B. ’61; Antonin Scalia, LL.B. ’60; Fred Shapiro, J.D. ’80; and James Boyd White, A.M. ’61, LL.B. ’64. He also shares his Harvard College education with Garrett Epps ’72 and Larissa MacFarquhar ’90. (Benjamin Cardozo, LL.D. ’27, received an honorary Harvard degree.)

A visiting lecturer in law at Yale Law School, Caplan was editor of Legal Affairs magazine, wrote about the Supreme Court for The New York Times editorial page, and is the author of five books. He profiled Cass Sunstein in “The Legal Olympian,” published in the magazine’s January-February 2015 issue.

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