Some stray thoughts by way of remembering Richard Posner, who was, by a substantial measure, the most important and impressive intellect of any American judge in the last hundred years.
He was….
Engaged and engaging. A number of the tributes rolling in for Posner make the same general point in similar terms: “I disagreed with Posner about something (or, indeed, almost everything), but I loved engaging with his work and he was perfectly happy to engage back.” Although I tended to agree with plenty of Posner’s work (but not all of it, and not uncritically), agreement was hardly the point. You read Posner for the joy of seeing a mind at work: fully on display, clear in exposition, more often sharp than prickly, and quite evidently happy to engage in the give and take.
Unsentimental and impolitic. When Posner engaged with a subject, he had little or no interest in position, status, or authority (in any sense of the word other than actual expertise). Scalia’s rank-based dismissive comeback in one of their late-period spats—”He’s a court of appeals judge, isn’t he?”—was, with its “Do you know who I am?” airs, no comeback at all. Posner would treat a student note with more respect than a Supreme Court justice’s treatise–if he thought the note was more worthy of respect. Whatever scant accommodations Posner presumably made as a judge engaged in an official and collective enterprise, when writing for himself he showed an appropriate indifference to prudence, politics, politesse, sacred cows, and taboos.
A quarter-century of listening to fellow legal academics’ behind-the-scenes explanations of why an article was written a particular way, who it was intended to flatter and persuade, what was cut or omitted, and why particular questions or implications were excluded and blandly, disingenuously labeled “beyond the scope” suggests to me that this is a very rare quality. I don’t think he felt free to write in this way because he was Posner; I think he was Posner, with a capital P, because he wrote this way. If others emulated this quality rather clumsily, at least it was a worthy quality to emulate.
Nor did Posner have any interest in sentiment, at least in his public life. I’m sure he subscribed to many of the values lauded in the “Law Day” rhetoric that he derided, or at least some version of those values. But he had no use for such talk, for the simple reason that he found it useless. And so it is, for grown-up audiences. Or at least so it was, while it was possible to take for granted that those values had a sufficient degree of common acceptance. You only miss “procedural liberalism” when it’s gone and unsavory things slither out from under the rocks, vying to take its place.
Posner’s obituary tribute to the man he clerked for, Justice William Brennan, included some criticisms of Brennan and the Warren Court instead of sticking with the usual cliches. He included them because he thought they were pertinent to a valedictory assessment of Brennan, a smart operator on a political court and a man worth taking seriously. Even when he was in something closer to Ecclus. 44 mode, Posner preferred to critically analyze a famous judge’s reputation rather than simply toss another laurel on the heap.
That seems to me the proper way to treat a serious figure. I imagine that Posner was bored and impatient during the sorts of conference preliminaries that lavish praise on the speaker, for the same reason that he was impatient with tame obituaries and questioned the value of hagiographic judicial biographies. He acted accordingly when writing about Brennan. I imagine that Posner would feel the same way about our postmortem praise for him. Empty compliments do the living little good and the dead none at all.
Incidentally, in Posner’s obituary of Brennan, his explanation–more than borne out since then–of why Brennan’s reputation is so much a “hostage to history” contains a passage about Holmes that, then and now, belongs equally to Posner himself: “You can disagree with everything that Holmes ever said or thought yet regard him as a very considerable figure in American law because of his intellectual creativity and his rhetorical power; he altered the conception of the judge and the structure of legal thought.”
Unreliable. I first heard Posner praised in this fashion when I was a law clerk, working for a conservative judge on a reasonably conservative circuit. I heard it several times after that. Almost invariably, those saying it belonged to conservative circles. To be sure, Posner was criticized many times, and from all over the political spectrum, for being unreliable in a different way. He was criticized for playing fast and loose with the law or the facts (as opposed to playing with them some but not too much, which is a pretty fair description of standard judging), or for doing questionable forms of outside research or fact-finding. (As opposed to making casual, dubious factual assertions and attributing them to “common sense,” or offering ominous guesswork, equally ungrounded but no less confidently asserted withal, about the consequences of a decision. Both of these are, again, the stuff of everyday judging by ostensibly respectable judges.)
But if I understood them correctly, the conservatives had something else in mind when they praised him for being unreliable. They meant that he could not be counted on to reach the “conservative” answer to a question. Nor, when a court had reached a conservative answer, could he be counted on to leave well enough alone and avoid reassessing and picking at that consensus with a fresh and critical mind. They meant that he might be a brilliant man but was not a safe, dependable vote. Too much the common-law man, too little the man with a program. A little too smart for his own good, perhaps. Undependable. Unreliable.
They weren’t wrong to praise him for it–and, if it sometimes sounded like a criticism when conservatives or others called Posner unreliable, that’s not really wrong either. He was a common-law man, although in the United States statutory and constitutional judging are also largely common-law judging. He could be aggressive about a case in the service of getting at what he thought was the nub of the matter or clearing away what he thought was nonsense or deadwood, and there were associated error costs. His late-period judicial and scholarly work was sometimes overconfident and far too casual even by his own standards.
I wrote of Posner at some point that he was a great judge, but that a judiciary functions well when there are many staid, workaday, dutiful “good” judges and not too many “great” ones. The law absolutely needs a few Posners, but only a few. Some of the worst district and circuit court judicial opinions are the product of judges visibly trying too hard to be “great,” or at least famous, rather than simply and boringly good. Law–the “law,” the whole body and process of it–is like billiards. The balls move in an orderly, predictable fashion, if you have the physics to see it. (A few of you may remember the scene in Mark Helprin’s Winter’s Tale in which Hardesty Marratta shoots a miraculous game of pool.) But the game needs a good, hard break every now and then to shake things up. That was Posner’s function. But, to paraphrase the late, great Edward Felson, you don’t want the game to be nothing but break shots.
Nevertheless, the conservatives’ praise for Posner was still justified. He was undependable, unsafe, “unreliable.” He was not there to enact a program or platform. Even the rationalizing element of his judging and writing was situational rather than programmatic. At least for the last three decades or so of his writing, with its pragmatic emphasis, he was a critic, not a would-be prophet. (He had interesting things to say about the prophetic genre in his book on public intellectuals.) I don’t think he ever would have imagined wanting to offer a panoptic “view” of “our country,” and one can only imagine what Posner in his prime would have had to say about Justice Alito’s book. The qualities that made him unreliable were the same qualities that made him the antithesis of the after-dinner spouter of Law Day rhetoric and the academic or judge who hides things in the convenient grey area of “beyond the scope.” They were right to praise him.
In looking over what I’ve written, it occurs to me rather belatedly that my conservative acquaintances may not have meant to praise Posner when they called him “unreliable.” No matter.
A Critic. I suppose Posner, with his decades of writing, is a little like rock music: you tend to think the music was at its best when you were young and deeply involved in it. Overcoming Law was published during my last year of law school, and I tend to think of the period roughly between the late 80s and the publication of The Problematics of Moral and Legal Theory and An Affair of State in 1999–as Sinatra sang, it was a very good year–as a particularly strong Posnerian (or should it be Posneric?) run.
A lot of that work was decidedly critical in nature, and much of Overcoming Law in particular–and later, How Judges Think and the less impressive Reflections on Judging–consists of book reviews and other forms of short- or medium-form critical evaluations.
Although he was not the only one to write such pieces–Mark Tushnet’s reviews were also terrific, among others–Posner alone published enough to be responsible for a golden age of book reviews and other occasional pieces in legal academic literature. Many of these pieces first saw the light in magazines (it was also a golden age for them), but plenty of them were published in law reviews. Reading the last couple of editions of the Michigan Law Review‘s book review issue, it is hard to say that this critical genre still exists. Either editors, authors, or both seem less inclined these days to favor quite the same sharp, direct approach. And Michigan is a rarity among law reviews in publishing book reviews at all. Given those factors and the (perverse) creative incentives created by SSRN policies and by the metrics of citation counts, it seems unlikely either that we will see more book reviews and similar pieces any time soon or that they will take the kind of incisive approach that Posner’s did.
Having flogged that issue plenty of times before, I will just say that when people talk this week about how much they enjoyed Posner’s sharp and lively writings, part of what they’re saying, however incidentally, is that they miss seeing good, sharp book reviews and other short or targeted pieces in the legal academic literature. I suppose some of them now do or will appear elsewhere; all we need to do is get a few hundred Substack subscriptions.