Swan Music of a Nice Colossus: The Newest from Richard Posner

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Richard A. Posner, Seventh Circuit Decide and College of Chicago professor, stood astride authorized scholarship within the late 20th and early 21st century like some latter-day colossus of Rhodes. He was essentially the most influential founding father of essentially the most influential faculty of authorized research, regulation and economics. He has been cited extra typically than every other authorized scholar—certainly, cited nearly as a lot as the 2 runners-up, Ronald Dworkin and Oliver Wendell Holmes, Jr., added collectively.[1] He's a member of the elite membership of biggest judges by no means to sit down on america Supreme Courtroom, alongside such worthies as Discovered Hand and Henry Pleasant.

In 1984, Pleasant, most likely the best appellate choose of his technology, wrote to Posner that he (Posner) was “the perfect choose within the nation.”[2] He has been described as certainly one of solely two geniuses whom the late Justice William Brennan (for whom Posner clerked) had ever met,[3] and he's the writer of a number of dozen books, greater than 300 articles, and several other thousand revealed opinions.[4]

Posner not too long ago and abruptly retired from the federal bench, leveling a blast at his Seventh Circuit colleagues for failing to deal with pretty those that represented themselves.[5] The Federal Judiciary: Strengths and Weaknesses is the same effort critically to guage the federal courts, and, in some methods, is as puzzling as Posner’s sudden retirement.

The response to this e book runs the gamut. The extremely revered conservative commentator and lawyer Ed Whelan (on Amazon, no much less) calls it “a mishmash of half-baked concepts, a hasty copy-and-paste dump. Don’t waste your time or cash on this mess.” However then once more, the equally extremely revered Georgetown regulation professor, Victoria Nourse, has a blurb on its again jacket that declares it to be “a delightfully iconoclastic critique of concepts many judges and teachers maintain expensive, stuffed with fascinating, authentic, and wide-ranging claims for reform within the federal judiciary and regulation faculty instructing.”

The reality most likely lies someplace in between. That is clearly not Posner’s finest e book and, fairly probably, to even name it a “e book” is considerably deceptive. It'd higher be described as a Posner-edited reader, as a lot of it's composed of reprinted or edited variations of judicial opinions, articles, and commentary, some however not all of that are by Posner. The choose is able to extraordinary wit, literary grace, and sensible perception, and these will not be totally absent right here,[6] however a lot of this tome, unhappy to say, is bereft of those qualities. Certainly, this was the primary Posner e book I've learn that was typically a repetitive slog. It might have benefitted from trimming most likely to half its measurement.

A Holmesian Authorized Philosophy

This isn't to say that there will not be some essential concepts right here. Posner finds judges far too stodgy. He believes they might do properly to desert time-consuming practices like following the notorious Bluebook: A Uniform System of Quotation (now in its 20th version), and to cease denying that the judicial process is, as Posner’s mentor, Oliver Wendell Holmes, Jr. put it, a legislative one.[7]

Posner, whose late profession, like Holmes’s, might finest be described as “pragmatic,” does supply a succinct window into what he believes judges ought to be doing:

I’m a pragmatist . . . My strategy in judging a case is due to this fact to not fear initially about doctrine, precedent, and the opposite standard supplies of authorized evaluation, however as an alternative to strive to determine the smart answer to the issue or issues offered by the case. As soon as having discovered what I feel is the smart answer I ask whether or not it’s blocked by an authoritative precedent of the Supreme Courtroom or by another ukase that judges should obey. If it’s not blocked (often it’s not—often it may be obtained round in some way), I say tremendous—let’s go along with the commonsense answer. I wish to see judicial opinions written by judges somewhat than regulation clerks and characterised by brevity and candor and a quest for the smart consequence.

He has little respect for many who differ from his Holmesian conception of the judicial function. Thus, he seems to exit of his option to condemn those that, like Justice Antonin Scalia, have been dedicated to a standard constitutional hermeneutics of authentic understanding. (See, for instance, pages 140 by 146.) Whereas Posner does have one or two type issues to say about Scalia’s writing and his persona,[8] in the end he dismisses Scalia’s non secular convictions, significantly Scalia’s acknowledgement that he truly believed within the satan, as “infantile nonsense.”

The choose is, nevertheless, an equal alternative excoriator, vouchsafing just a few harsh phrases about Scalia’s colleague, Justice Elena Kagan, whom Posner reviews Chicago selected to not retain on its college after she left to serve within the govt department.[9] (She went on to turn into dean of the Harvard Regulation Faculty earlier than accepting an Obama appointment to the Supreme Courtroom.) Kagan is dismissed in these pages as a mediocrity, like all of her fellow present justices, save, in Posner’s view, Justice Stephen Breyer and Justice Ruth Bader Ginsburg (“and Ginsburg could also be fading”). Posner accuses Harvard regulation professor Adrian Vermeule of “self-regarding sophomoric disparagement of Decide Henry Pleasant” and, in doing so, of being “bratty” and “ignorant.”

Posner hoots at Chief Justice John Roberts’s “eyebrow-raising declare” throughout his affirmation hearings “Supreme Courtroom Justice is the equal of an umpire or referee, who doesn't make guidelines however merely enforces the principles given to him.” In line with Posner, Justice William Rehnquist was a “real sourpuss” and was “totally detached” to the discomfort he brought about his colleagues from his chain-smoking.[10] Posner faults all judges and attorneys in that they “are likely to look backward somewhat than ahead. Their motto could be ‘We’ve all the time accomplished it this fashion.’”

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

creed of authorized realism (equivalently of authorized pragmatism), the creed embraced and refined by Holmes, Brandeis, Cardozo, Jackson, Hand, Pleasant, Traynor, and different nice judges, and by nice teachers equivalent to Karl Llewellyn, Edwin Patterson, Felix Cohen, Grant Gilmore, and Edward Levi, in addition to nice philosophers who dabbled in regulation equivalent to John Dewey and Richard Rorty.

However these of us who assume this crew did a lot to kill the American beliefs of the rule of regulation and that ours is a authorities of legal guidelines, not males, may not agree with Posner’s paean to them, which this e book in the end is.

“Playful, however with a Streak of Cruelty”

Nonetheless, among the choose’s bracing expostulations, equivalent to his being “troubled by the self-satisfaction expressed by many regulation faculty deans and regulation professors,” are proper on the mark. Posner as soon as, with nice perception and accuracy, described himself as very similar to his pet cat: “I'm chilly, furtive, callous, snobbish, egocentric, and playful, however with a streak of cruelty.”[11] He ends this e book by quoting what “the nice British (half-Irish, half-German) poet novelist, critic, and classicist” Robert Graves had mentioned about his extraordinary 1929 autobiography, Good-Bye to All That, a e book that declared the passing of the exceptional pre-World Struggle I British Empire. Graves “known as it a ‘fairly ruthless’ e book, although written ‘with out indignation.’”

So, apparently, is that this one. Authorized realists will discover a lot right here to admire. These of us who hope the regulation could be one thing greater than utilized politics, economics, sociology, or pragmatism, not fairly a lot.

 

[1] Larissa MacFarquhar, “The Bench Burner: How Did a Decide with Such Subversive Concepts Develop into a Main Affect on American Authorized Opinion?,” New Yorker, December 10, 2001.

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

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

[4] Regulation Professors, p. 300.

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

[6] See, for instance, p. 120: “Justice Holmes’s description of the Supreme Courtroom Justices as ‘9 scorpions in a bottle’ was profoundly mistaken; they're a litter of cuddly new child kittens.”

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

[8] See, for instance, p. 412 (“Credit score ought to be given to Scalia for his wonderful writing fashion, his humorousness, his independence, and above all his stunning concern with the rights of legal suspects and defendants.”)

[9] Posner reviews (p. 401, observe 6) that Kagan “sought reappointment by the regulation faculty when the Clinton administration ended, however the regulation faculty declined to reappoint her.”

[10] I solely met Rehnquist twice—as soon as once I unsuccessfully interviewed for a clerkship in 1971, and, a few years later, when he got here to talk at Northwestern, however he struck me each instances as a caring and amiable fellow.

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

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