Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.
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A man[’s] . . . thinking should be
cosmopolitan and detached. He should
be able to criticize what he reveres and loves.
– Oliver Wendell Holmes, Jr., February 4, 1901
He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.
Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.
To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.
He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.
Past as Prelude
Richard A. Posner, Harvard Law Review photo
He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review).
His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:
Consolo v. Federal Maritime Commission (1966) (audio here)
Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
United States v. Von’s Grocery Co. (1966) (audio here)
First National Bank v. Walker Bank (1966) (audio here)
Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
Honda v. Clark (1967)(audio here)
United States v. Arnold, Schwinn & Co. (1967)
Will v. United States (1967)
Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)
Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).
The virtual Posner
As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.
One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.
The Brennan Clerkship
I was a little disappointed in the Supreme Court. I had a
more elevated opinion of it as a law student than it merited.
– Richard Posner
To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.
Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.
Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”
In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”
Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”
Mind Games — A Multidimensional Man
Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).
In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.
Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.
Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.
Unconventional Appeal
Closer to earth though still distant by conventional measures, there are his views on human sexuality. If Richard Posner is obsessed with sex, it is only because he inclines more to the Aristotelian than to the Dionysian. Still, to that end he actively pursues his flights of sexual analysis with dispassionate rigor and moral neutrality, largely unrestrained by the dictates of the totems and taboos of our times.
Exhibit A: There is his skeptical take (circa 1999) on conservative culture critics such as Gertrude Himmelfarb: “[U]nless we want to go the way of Iran, we shall not be able to return to the era of premarital chastity, low divorce, stay-at-home moms, pornography-free media and the closeting of homosexuals and adulterers.”
Exhibit B: There is his concurrence in Miller v. City of South Bend (1990), the Kitty Kat Lounge strip-tease dancing case. Here is how he began that 10,600-word opinion: “Public performances of erotic dances debuted in Western culture in the satyr plays of the ancient Greeks, were suppressed by Christianity, and, with Christianity’s grip loosening, reappeared in the late nineteenth and early twentieth centuries.” Then later on, he added some Latin into the judicial mix: “De gustibus non est disputandum” (“In matters of taste, there can be no disputes.”) With clinical-like indifference he analyzed the matter as if it were a torts case. In sustaining the First Amendment claim, he declared: “In the America of 1990 the project of stamping out nude striptease dancing is quixotic. The power of government is relative to the desires and values of its people. The State of Indiana cannot take the erotic edge off American culture.” Perhaps not, but the Supreme Court did venture to remove that erotic edge when it reversed the judgment of the Seventh Circuit.
Exhibit C: And, of course, there is Posner’s Sex and Reason (1992) in which, among other things, biology (informed by behavioral economics) plays outs its determinist evolutionary hand in ways to maximize survival and pleasure within societal boundaries. Grounded in libertarian-pragmatic arguments situated in evolutionary and sociological soils, the book covered a range of topics from Puritanism to pornography and from strategic homosexuality to eugenics. Perhaps because of certain probing critiques of his views on sex (see, e.g., William Eskridge’s “A Social Constructionist Critique of Posner’s Sex and Reason: Steps Toward A Gaylegal Agenda”), Posner reassessed some of his thinking in this area (see his 2014 ABAJ interview with Joel Cohen). All that said, one can only fantasize about what fun Father Freud would have had analyzing the Posnerian psyche.
Moving beyond sex, there is more to his story than psychoanalysis; there is the widespread attraction to his thought. Though not commonly known, Judge Posner’s appeal is global. His academic writings have been translated into French, German, Russian, Italian, Spanish, Chinese, Japanese, Korean, Greek, Turkish, Portuguese, Ukrainian, Lithuanian, and Slovenian. Whether one reads Posner’s judicial opinions or extrajudicial writings, of this the reader can be sure: his words were not ghost written by some law clerk or aide; they are all his very own. In these “plagiarist” times, such self-writing is as rare as the scribal work-product of a cloistered monk.
Posner’s Productivity
Few fully (or openly) agree with the Seventh Circuit Judge who does most of his work from the second-floor study in his home in Chicago’s Hyde Park neighborhood. Others openly disagree, and strongly so. Take the late legal philosopher Ronald Dworkin (1931-2013), for example. As he saw it, some of Posner’s “most confident and important judgments were highly doubtful or plain wrong.” Posner countered by charging that Dworkin’s “dominant bent as a public intellectual is to polemicize in favor of a standard menu of left-liberal policies.” That said, there have been moments of moderation between these two intellectual giants. See e.g. Richard Posner, “Tribute to Ronald Dworkin and a Note on Pragmatic Adjudication,” 63 New York University Survey of American Law 9 (2007).
Given the challenges to and demands of Posner’s reasoning, he might even sometimes disagree with himself in his more private Socratic moments. After all, it is hard to maintain categorical confidence in one’s work when that work is amazingly voluminous. Only consider his written record:
nearly 3,000 published judicial opinions,
40-plus books, and
300-plus scholarly articles all bear his name, along with the stamp of his exacting rationality.
Speaking of numbers, he has heard arguments in over 6,000 cases and has spoken on countless occasions to a variety of groups (see here for a sampling).
Some, like Barry Gewen of the New York Times, think that Posner’s “productivity works against him. Much to the consternation of many of my friends,” added Gewen, “I’ve never read [Anthony] Trollope: he wrote so much that I’ve never known where to start or how I would stop. I think the same abundance intimidates many of Posner’s potential readers. They don’t know what they can profitably read and what they can profitably skip, so they don’t read anything.”
No matter. He likes to write – he lives for it. “Whenever I have free time, I write,” he said last year. “I am compulsive,” he notes. “I don’t do much else. I don’t take vacations. My wife and I don’t go out often. Sometimes for dinner or the theater, but not often. So I work weekends, nights. I have lots of time and I write. I am fast; I cover a lot of ground.” His productivity has won him the title of the “Joyce Carol Oates of jurisprudence.” Between 2009 and 2013, his works and his opinions were cited 6,980 times in scholarly journals – that is more than those secured by the leading legal academics. (His son, Professor Eric Posner, ranked fourth.)
The Posner resume spans a wide spectrum: Among other things, he is a blogger, a social commentator, a member of the American Law Institute, and a fellow of the American Academy of Arts and Sciences. He has testified before Congress many times between 1969 and 2006. A list of his many awards and honorary degrees would tire most readers. And not surprisingly, the former Chief Judge (1993 to 2000) of the Seventh Circuit is also the subject of an Oxford University Press biography by William Domnarski, which is scheduled for release in early 2016. (See also William Domnarski, In the Opinion of the Court (1996) (contains 40 pages discussing Judge Posner).)
A Very Private Man with a Very Public Life
I’ll be your light, your match, your burning sun,
I’ll be the bright and black that’s making you run.
— One Republic (2014)
If the moment is right, if his consciousness is sparked, you can find this most cerebral of men savoring the piano-key striking, hand-clapping, rock music of One Republic. Not Mahler, not Perlman, not Sondheim, or even Callas. No, his musical mix finds its delight in song’s like Counting Stars by One Republic: “Everything that kills me makes me feel alive.” Yes, it’s true: beneath the surface of his concentrated layer of rationality there pounds the beat of his rhythmic heart. Unusual? Perhaps, but consider the man, this most unusual of men.
Beyond his judicial job, Richard Posner is a husband (to the former Charlene Horn), father (to Kenneth and Eric), and grandfather (to four grandchildren). Such familial ties aside, this son of a Communist mother (Blanche), who was a schoolteacher, and a father (Max) who was a onetime criminal defense lawyer, is a man of his own mold. Maybe that explains one other unusual fact about him: Richard Allen Posner is a very private man who leads a very public life. He talks openly of his cat, but rarely of his family. Moreover, his DNA does not mix well with the small talk of the socializing crowd: “When you’re just talking with your friends about trivia,” he told a writer for the New Yorker, “what’s the point?” The nightlife is not his cup of tea: “I don’t go to cocktail parties,” he recently said in an ABA Journal interview. “I don’t go to conventions or bar events,” he added, “or at least very, very rarely.” That said, he does have his witty deadpan side that can be quite charming when one least expects it. In other words, Posner can be playful.
Though he is too modest (yes, that is the word) to affirm it, a fair case can be made that Richard Posner could well be the greatest, or at least the most influential, judge of our modern time (with due credit, of course, to Judge Henry Friendly). Justices may reverse him, scholars may refute him, politicians may criticize him, and moralists may condemn him, but none can ignore him as long as reason and realism hold sway in the affairs of law. Already in torts and contracts, for example, his reputation rivals that of Judge Benjamin Cardozo.
So, too, with his influence in the law of antitrust (see, e.g., his opinion the Fructose Corn Syrup case). On that general score, Professor William Kovacic, a renowned antitrust scholar, has described Posner as “one of the most important antitrust scholars of the past half-century.” Even so, one commentator recently referred to him as “imperious Posner,” this for his controversial opinion in Motorola Mobility v. AU Optronics Corp. (2014), a billion-dollar international antitrust case. And then some view his brilliance in the field as “bizarre.”
Controversy aside, few contest the impact Posner has had on American law with the advent of the law and economics movement that he was so instrumental in helping to launch. This way of reasoning that has done much to shape the law of property and intellectual property, contracts and tort law, criminal and corporate law, and even constitutional and international law, among other areas of the law.
Even so, Posner is also a man with an evolving mind. Nothing is sacred in his mind’s domain. CHANGE governs all. Just consider what he said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992), which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. [See, e.g., his opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104), a gay marriage case, and his revised view in Frank v. Walker (7th Cir., Oct. 10, 2014), a voter ID case] I’ve become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn.”
Similarly, though he once strongly favored deregulating the financial industry, in 2012 he was of a different mind: “I was an advocate of the deregulation movement and I made — along with a lot of other smart people — a fundamental mistake, which is that deregulation works fine in industries which do not pervade the economy. The financial industry undergirded the entire economy and if it is made riskier by deregulation and collapses in widespread bankruptcies as what happened in 2008, the entire economy freezes because it runs on credit.”
The history of his life is the story of a man burning to make his mark by the sheer force of his own reason. Private-public, bold-modest, serious-comic, certain-mistaken – put them together and what emerges is a portrait of Richard Posner grinning, as if to test our certitude about him.
Part II of this biographical essay will be posted on this blog this coming Wednesday, November 26th, and will thereafter be followed with a series of five Q & A interviews with Judge Posner.