The judicial philosophy of Richard Posner

IN a profession marked by pomp and pretence, Richard Posner, who is retiring from the judiciary, is a renegade. For Dick, as he is known to his staff, the tradition of clerks addressing their bosses as “judge” exemplifies the judiciary’s stodginess and resistance to innovation. In his decades as a writer and a jurist, Mr Posner, aged 78, “changed the legal landscape”, says Eric Segall, his collaborator and a law professor at Georgia State University. Laurence Tribe of Harvard Law School says Mr Posner has had a “uniquely broad influence” on the legal academy and on America’s courts.

Few of the nearly 200 circuit-court judges who handle appeals from America’s 94 district courts make headlines. Mr Posner grabs many. The judge’s “staggering work ethic” and “fierce intellect” start to explain his renown, Mr Segall says. Mr Posner is the most-cited legal scholar of all time, according to a 2000 study. He has written more than 3,000 judicial opinions, hundreds of articles and dozens of books, including “The Federal Judiciary: Strengths and Weaknesses”, a scathing 2017 portrait in which readers are hard-pressed to discover many “strengths”.

Mr Posner thinks most judges are lousy writers who rely unduly on their clerks and are “stuck in the past”, paying obeisance to fusty traditions. He does not spare the Supreme Court. “I don’t think the justices are doing a good job,” he writes, and “obviously” are not the nine best-qualified lawyers in America. (Are they “nine of the best 10,000? I’ll give them that.”) None measures up to the likes of Oliver Wendell Holmes or Louis Brandeis, he writes, “with the possible exception” of Stephen Breyer and Ruth Bader Ginsburg, two liberal justices on the Supreme Court. Mr Posner reserves particular ire for the late Antonin Scalia, a “hyperconservative” justice he lambasted for his originalist jurisprudence and for neglecting his health.

The cardinal sin of most judges and justices, Mr Posner argues, is their disingenuous allegiance to a formal conception of law. Whether a judge aims to apply the law as it was understood at the time it was enacted (Scalia’s originalism) or in light of its underlying moral principles (as the late Ronald Dworkin, the second-most-cited legal scholar of the 20th century, did), the quest is quixotic. “I’m a pragmatist,” Mr Posner writes. His approach to a case is “not to worry initially about doctrine, precedent and the other conventional materials of legal analysis”. Instead, he tries to “figure out the sensible solution to the problem” and only then ask whether it is “blocked by an authoritative precedent of the Supreme Court or by some other case that judges must obey”.

Before he took his seat on the Seventh Circuit, Mr Posner spent six years working in government and 12 as a law professor at Stanford and the University of Chicago. In 1973 his “Economic Analysis of Law” became a foundational text of the widely influential “law and economics” movement. According to this approach, law is best understood as a mechanism for promoting economic efficiency writ large. Compensation is not the heart of tort law, for example: encouraging people to guard against accidents is. Racial discrimination is worth banning not because people have inviolable rights but because bias exacts a toll in the form of warped relationships. “Law and economics” has been employed to make sense of concepts as disparate as the right to privacy, contracts and, as Mr Posner wrote in 1981, “the meaning of justice”.

A reverence for markets is at the core of law and economics, and Mr Posner was conservative enough to earn an appointment from Ronald Reagan. But later in his tenure, his ideological tilt shifted. “I’ve become less conservative”, he said in 2012, “since the Republican Party started becoming goofy.” Mr Posner invalidated bans on gay marriage and inveighed against a voter-ID law in 2014. The following year, he struck down a restrictive abortion law in Wisconsin because it was based on “spurious contentions regarding women’s health”. A few months ago, he joined a ruling confirming that sex-discrimination laws protected a lesbian professor who says she was pushed out of her job.

Idiosyncrasies attract varied critics. Michael Dorf, a leftish professor at Cornell, laments Mr Posner’s “peevish” turn in recent years. Ed Whelan, a rightish commentator, calls “The Federal Judiciary” the “worst-edited book that I have ever tried to wade through” and faults the author for endorsing some infamously bad rulings as right for their time. Mr Posner’s pragmatic impulse produced some scattershot results: he has changed his tune on several issues over the years, including same-sex marriage and voter-ID rules. That shows the limits of a method tied to even a brilliant judge’s sense of what works. In the hands of a lesser judge, his approach might bring dodgier results.

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