The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness

Posner

This is the second installment of a biographical profile of Seventh Circuit Judge Richard Posner. The first installment can be found here. Beginning next week, a five-part Q & A series along with an interview with the author of a forthcoming Posner biography will be posted.

Note: Some of the links used below will open only in Firefox or Chrome but not in Safari. // Revised: 11-26-14 (10:50 pm)

The Friendly Connection

“Friendly and Posner have been cited by name by the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. Districts Courts more often by far than any other circuit court judges.”  — William Domnarski (2011)

While much is known about Judge Posner’s high regard for Justice Holmes, much less attention has been devoted to his great respect for Judge Henry Friendly (1903-1983). For Posner, Friendly’s “photographic memory combined with his analytical power, energy, speed, and work ethic” produced “the most powerful legal reasoner in American legal history.” Or as Posner put it in a 1986 tribute: Judge Friendly’s “opinions have exhibited greater staying power than that of any of his contemporaries on the federal courts of appeal.” (99 Harv. L. Rev. 1724)

Between 1982 and 1986, the two jurists shared some 15,000 words in correspondence to one another (their letters have been preserved in the Harvard Law Library). Early on, in a May 12, 1982 letter to Posner, the 78-year-old Friendly praised the 43-year-old jurist: “I could not have dreamed of finding so perceptive a reader as you.” As Mr. Domnarski has aptly noted, “[s]oon Posner was comfortable enough to reveal some uncertainty in his work and ask for criticism that might help him. ‘On a more serious, even dismal, note,’ he writes, ‘I am enclosing a recent opinion I did on primary jurisdiction. I hope I got it right, but I felt a little unsure of the boundary between exhaustion and primary jurisdiction; and I would as always appreciate any comments, however critical, if you have time to read it. Pay no attention to it if I’m trespassing too much on your time.’”

A few years later, Judge Friendly was even more impressed with both the volume and quality of Posner’s judicial opinions.

Judge Friendly on Posner’s Judicial Opinions

“Every one is a masterpiece of analysis, scholarship, and style,” he declared in a September 19, 1984 letter. “About a year ago I said you were already the best judge in the country; having uttered that superlative, I am baffled on how to better it. If I could think of a way, I would use it.”

They wrote back and forth on topics ranging from railroad law to diversity jurisdiction and beyond. “Friendly and Posner were apparently so drawn to each other’s work,” says Domnarski, “that they wanted to see the other in action by having Posner come to Friendly’s Second Circuit and sit by designation. Posner had at first wanted Friendly to come to the Seventh Circuit to sit to take advantage of the rule allowing senior circuit judges such as Friendly to sit by designation in other circuits upon request and approval by the visited circuit’s chief judge.” Unfortunately, it never happened, though Posner did manage an occasional visit with Friendly whenever he came to New York and had the time.

Around Christmas of 1984, Judge Friendly inquired about Posner’s possible “elevation” to the Supreme Court. Even back then, Posner thought it doubtful. As he expressed it in a December 26, 1984 letter: “I have become an object of mysterious fascination to a segment of the press, which is doing a pretty good job of portraying me as a weirdo on the basis of some of my pre-judicial academic writing (misrepresented) and a handful of my opinions (misunderstood). Of course there is precious little I can do about any of this, but I am consoled by the thought that eventually the press will lose interest in me and move on to intrinsically livelier topics.”

Screen Shot 2014-11-21 at 9.33.44 AMAssuredly, Henry Friendly knew well what it meant to be a great judge but nonetheless passed up for a seat on the High Court. In a January 10, 1985 letter, he tried to console Posner: “These things are annoying but all this will pass. Unhappily this may not be without injury to your immediate prospects for elevation but I gather that you did not think these were very high in any event. You are wise to have acquired immunity for Supreme Court fever – a disease that has ruined many a judge.”

By 1986 it was over; Henry Friendly – old, depressed, and lonely – took his life. It was a great loss to the legal world. Worse still, his brand of judging was vanishing into the vapor of a past-tense world. Law, Posner wrote that same year, “is becoming increasingly politicized, bureaucratized, and specialized, and rising workloads are depriving more and more judges of time for reflection, discussion, and outside reading. These trends, which are unlikely to be reversed soon, bode ill for the continuation of our tradition of great judges. We may not see the likes of Henry Friendly again. The fullness of time may reveal that his passing marked the end of the classic period of American law.” (99 Harv. L. Rev. 1724,1725).

Friendly & Posner – their names sit well together. In some respects it is unsurprising that the two should have bonded as they did. They shared a common commitment to solving the riddles of the law in ways that lesser judges never do. Given their cerebral firepower and will to make the law more beholding to pragmatic reasoning, they stood almost alone in the camps of jurists.  Because of that, they also shared a common identity as the most highly regarded jurists of their time, though neither ever elevated to the Supreme Court.

As it turned out, Henry Friendly’s reputation struggled to survive the ravages of time (see, for example, Adrian Vermeule’s review of the David Dorsen’s biography of Friendly). Even so, traces of the Friendly legacy find new and invigorated meaning in the person and writings of Richard Posner, buttressed of course by the latter’s unique judicial temperament, stylistic writings skills, and economic modes of analysis.

Beyond their respective biographies (existing and forthcoming), someday someone will write a book of a collection of profiles of the great federal judges who influenced the law but never sat on the High Court (a book similar to G. Edward White’s The American Judicial Tradition). When that book is done, profiles of Henry Friendly and Richard Posner are certain to be included, if only because they helped to shape the law in ways that most Supreme Court Justices never have. And yet, when he was nominated, relatively little attention was paid to Richard Posner; it was as if all that he had already written were typed in invisible ink. He was just another nominee . . . or so it seemed to the Senate when it confirmed him.

Richard Posner’s Confirmation Hearing

Posner’s confirmation hearing took place on a Friday afternoon, in a joint session with four other nominees, and with only Chairman Strom Thurmond and the conservative Howell Heflin of Alabama in attendance. Posner’s part of the hearing took but a few minutes, and he was quickly confirmed without debate.  — Herman Schwartz, Packing the Courts (1988)

Judging Risks: Global Warming, Terrorism, & Abortion Protestors

UnknownHe crosses the street with Darwinian caution. While he may not be entirely risk averse, he is surely risk attentive . . . even though a side of him greatly admires Holmesian heroism of the kind the captain so valiantly displayed in the Civil War. In this general regard and others, one can turn to Posner’s book Catastrophe: Risk and Response (2004) to get an up close sense of his views on cost-benefit analysis.

Global Warming: Mindful of such matters, a decade ago Posner expressed serious concerns about global warming. In Catastrophe, he stressed that “a wait-and-see policy would be perilous.” Though he would surely shun an environmentalist name tag (too herd mentality like), the libertarian jurist cautioned: “Eventually, and perhaps sooner than later, the atmospheric concentrations may reach a level that triggers abrupt, catastrophic global warming – the kind that ended the Younger Dyras. No one knows what that trigger point is or when it will be reached (if ever), but it will be reached sooner if we do nothing, starting now, to reduce emissions.”

In reflecting on the respective environmental and economic factors, Posner was sensitive to the well-being of future generations:

Posner the “Environmentalist” 

Although there is a strong case for taking measures against global warming now rather than waiting decades to do so, the question remains what measures to take – how much cost to incur – and the answer depends in part on the weight to be given to the welfare of future generations, since it is most likely that the costs of global warming will be borne primarily by them.”

In that regard, he made a strong case for being “more future-regarding.” To put it another way, the law may belong to the living, but its impact will be on those yet to be born, to whom a duty is surely owed.

Terrorism: Lest Judge Posner be mistaken for a pie-in-the-sky liberal, his ideas on terrorism and civil liberties might readily prompt those of that ilk to pause before applauding him. Here again, his views on risk management are articulated in Catastrophe, and also in his Not a Suicide Pact: The Constitution in a Time of National Emergency (2006).

Posner has little patience for civil libertarians who hold that courts should actively police the constitutional boundaries between national security and civil liberties. “The strategy of civil libertarians,” he wrote in Catastrophe, “is to oppose the slightest curtailment of civil liberties. Their strategy may serve their fund-raising and other organizational goals, but it is questionable from an overall social welfare standpoint.” (See “Geoffrey Stone Debates Judge Richard Posner on Civil Liberties,” ACSblog, October 3, 2005, and “Legality and National Security,” Judge Posner’s remarks to ABA Standing Committee, May 9, 2006)

In United States v. Daoud (2014), a case involving a convicted American terrorist who attempted a “violent jihad” by way of bombing a building, Posner put his academic views to legal use. In Daoud the court denied the defendant access to secret warrant applications that allowed FBI surveillance of him. “The Foreign Intelligence Surveillance Act,” wrote Posner, “is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s efforts to protect the nation.” And then with characteristic bluntness he added: “Terrorism is not a chimera.” (The court later elaborated on its reasoning in a heavily redacted classified opinion.)

Posner Hypotheticals

Were it known that a terrorist was driving toward Chicago with a bomb, would you think it an improper restriction of civil liberties to stop and search all cars approaching Chicago, even though there would be no probable cause to suspect any given driver of carrying a bomb? Or suppose a kidnapper has buried his victim alive and refuses to tell the police where. A policeman punches him in the face to make him talk. Would you think the policeman had acted improperly?  (Source here.)

In a nutshell, Posner’s view is this: “Most judges know little about national security; the danger of catastrophic terrorism is real; and a constitutional decision forbidding a counterterrorist measure is almost impossible to change. It is better to leave these matters to be sorted out by the executive and legislative branches of government, where the relevant expertise resides.” Whether that is entirely so is, to be sure, open to debate as Jeffrey Rosen pointed out in his 2004 review of Catastrophe.

On a related front, there is also the question of the Wikileaks and Edward Snowden and their respective revelations of government excesses taken in the name of national security. Here again, Posner is not without an answer; he has his own take on whistleblowers and classified information. In November of 2011, while speaking at the Chicago Humanities Festival, Judge Posner told the audience: “I don’t think disclosure of classified information has ever been significantly harmful to American foreign policy and national security objectives. And indeed in many cases has helped them. On the other hand, I don’t think the efforts of the government to stifle revelation of classified material is consequential.”

Abortion Protestors: Harms, however, do not have to be catastrophic for Judge Posner to believe they may trump some claim of constitutional liberty. Take, for example, his criticism of the unanimous judgment in the recent Supreme Court buffer zone abortion clinic case. “Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?).”

Unwilling to leave it there, Posner cut to the realist quick: “The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

Oh, how he abhors the sanctimonious! — be they conservative moralists or Ivy League ones.

Academic moralists pick from an à la carte menu the moral principles that coincide with the preferences of their social set. They have the intellectual agility to weave an inconsistent heap of policies into a superficially coherent unity and the psychological agility to honor their chosen principles only to the extent compatible with their personal happiness and professional advancement.Richard Posner, October 1997 (Harvard Law School).

The Art of Critical Thinking

Maverick. The word suits him. Unconventional, independent-minded, lone wolf, a man beyond brands, that is Richard Posner. No party can truly claim him, no orthodoxy can abide him, and no test-the-political-winds Senate Judiciary Committee would ever confirm him for a seat on the Supreme Court – he has too much professional pride to grovel and be evasive the way one must act to be confirmed. As to this matter, in 2003 he remarked (by way of an understatement): “I would have some trouble being confirmed today . . .” Ten years later, in an NPR audio interview, he was even more skeptical: “No,” he chuckled, “I’d be too controversial.” Professor Michael Dorf, among others, agrees:

Were Posner an unconventional judge merely in his willingness to articulate the practical consequences that drive his decision-making process, he might have been named to the Supreme Court. But two factors have prevented his elevation.” First, there is his “lack of ideological purity.” Second, there is his record of addressing, in books, articles, and opinions, “every hot-button issue of the day.”

Even if it were possible to push such a Sisyphean rock all the way up to a seat on the High Court, it would be a challenge for him to tolerate the homogenizing demands of compromise or the ideological barbs likely to come his way from certain brazen Justices. Then again, Posner is strategic enough to understand how best to survive (and thrive) in various environments, including a Hobbesian-like one. Still, he is at his best when his maverick side shines – be it in an unusual majority opinion, an unconventional concurrence, or in an uninhibited dissent. It is as odd as it is true: There is something strikingly American about this Ivy-League-educated intellectual who, like a roam-free cowboy, values his freedom too much to hand it over to those who would fence in his mind.

Ronald Coase (1910-2013)

Ronald Coase (1910-2013)

Just consider his own allegiances, tentative as they are: “I started out liberal, but became more and more conservative first during the turmoil of the late 1960s, which I found extremely repulsive, and then when I started meeting economists like [George] Stigler and [Ronald] Coase and [Milton] Friedman. I am less dogmatically conservative today, for example, on environmental (e.g., global warming) matters. I was never a social or religious conservative.”

See Richard Posner & Francesco Parisi, editors, The Coase Theorem (2013)

→ See also Ronald Coase, “Coase on Posner on Coase,” Journal of Institutional and Theoretical Economics (1993).

His independent spirit notwithstanding, Richard Posner is no William O. Douglas. Hardly. He would have to forsake his pragmatic credentials were he to emulate the judicial career of the Court’s most wily liberal. Though Douglas was a legal realist, he was not one who brought respect to that school of thought. He “flouted perfectly sensible norms of judging,” said Posner, and thus “helped to give realism a bad name.” Douglas was far too careless, so much so that he became something of an anti-judge. By stark contrast, Posner is too concerned with judicious behavior and the respective costs and benefits of consensus to be oblivious to it like Douglas was.

How does one build consensus and remain a maverick? That is the riddle that Judge Posner has devoted much of his academic and judicial career addressing. In the competitive and evolutionary struggle of human affairs, the realist gamble is that some measure of reason (not to be confused with utopian notions of “deliberative democracy”) will have the potential to move people in some sound way. To be sure, various stratagems may be necessary to help move things along, and in this regard Posner is acutely mindful of such matters as evidenced by the more than modest success of both his academic writings and judicial opinions. Still, he is also aware that sometimes it is important to break free of the pack in order to forge new ideas or level bold objections or simply to counter the growls of the “Great Beast.”

richard-posnerFor the Record            

So how much of a maverick is he? Well, he does like Albert Camus’ The Stranger (the novel that opened with these words: Mother “died today. Or maybe yesterday, I don’t know.”). Of course, no one could fairly fault the Judge for liking such an absurd work. As for his maverick credentials, and beyond any existential tendencies, consider the following snippets of his thought:

  • There are his views on God and atheism: “Well, I am one of those non-worshippers, but I have no interest in promoting a doctrine of atheism.”
  • There is his personal philosophy: “If I had some basic outlook, it would be that people are monkeys with large brains, period. And that’s the way you have to think about it. It does make me cynical about human motivation. You just have to be very practical, very realistic. I don’t put any faith in utopian dreams,” he stated in this 2012 Big Think interview. “I don’t think people are basically good or anything like that. . . . One has to have a caustic view of people, of all people. . . . [And] I very much dislike the extremes of left and right.”

Then there are his views of the secular gods:

  • Let us begin with his general opinion of the Supreme Court:

“Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically . . . it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time. . . . [T]he Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year.”

  • Or what of his view of Chief Justice John Roberts’ majority opinion in McCutcheon v. FEC (2014)? “Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors.”
Justice Stephen Breyer

Justice Stephen Breyer

Whether the jurist is conservative or liberal is of no moment to Posner:

  • There is his take on the theories advanced by Justices Antonin Scalia and Stephen Breyer: “I don’t think these comprehensive constitutional theories” [he chuckles at this point] are worth the paper they are written on. I don’t think there is any content to . . . originalism [or] ‘active liberty’ or any of that stuff. It’s liberals and conservatives,” he said in another Big Think interview. Rather than concede their bias, he added, “they construct some elaborate rationalization. . . . I think these guys have feelings, you know, political feelings, moral feelings, [and] emotional feelings about . . . cases and they dress up their feelings in an elaborate way.”
  • And then more on Justice Antonin Scalia: “Scalia makes judging too difficult by telling judges to master and apply a baffling and ultimately fruitless system for avoiding engagement with reality. He is,” Posner adds in his book Reflections on Judging (2013), “a complexifier, though it is less likely that complexity guides his judicial votes . . . than that it conceals the biases that actually generate those votes.” [Not in the Shorter OED — Ever the nonconformist, Posner seems to have coined a new word with “complexifier.”]
Justice Scalia

Justice Antonin Scalia

See also “The Rise and Fall of Judicial Self-Restraint,” remarks at Brennan Center Jorde symposium at the University of Chicago Law School, April 14, 2011 (video remarks).

And what of the duties of those who interpret the canons of law?

  • There are his views of judges generally: “[G]enerally the judicial community is not like the academic community. Judges, my sense is, do not spend a great deal of time reflecting about what they do and why they do it in the ways that they do it. Think about continuing legal education for judges. It tends to be vocational.”
  • There is his intense dislike for commonly used legal catchphrases: “Among the many phrases I would love to see banished from the legal vocabulary, my first choice would be ‘plain meaning.’ [Lawyers only use it] when they’re dealing with an ambiguous document. So it is totally empty rhetoric.”
  • There are his views on statutory interpretation as he expressed them in his dissent in United States v. Markgraf (1984): “Legislators cannot foresee and solve in advance all the problems that will arise in the practical administration of the statutes they enact. The judicial duty of statutory interpretation is not a duty merely to read; it is a duty to help the legislature achieve the aims that can reasonably be inferred from the statutory design, and it requires us to pay attention to the spirit as well as the letter of the statute.” (See also David Lat, “Judge Posner on Statutory Interpretation: This Is How We Do It,” Above The Law, Oct. 19, 2012)

If some of these views seem a bit much to those on the bench or in the bar, Judge Posner has a ready reply: “I’m not fully socialized into the legal profession. I’m like an imperfectly housebroken pet.” Of course, it is possible that Posner was being playfully flip when he spoke those words to Larissa MacFarquhar in a revealing 2001 New York article (the one with the good Judge clad in a business suit and standing stoically in a doorway embracing his furry gray Maine coon cat). Be that as it may, this legal maverick has still other provocative views about life and law.

  • There is his view of comparable worth as set out in his opinion in American Nurses Association v. Illinois (1986): “On the cognitive question economists point out that the ratio of wages in different jobs is determined by the market rather than by any a priori conception of relative merit, in just the same way that the ratio of the price of caviar to the price of cabbage is determined by relative scarcity rather than relative importance to human welfare. Upsetting the market equilibrium by imposing such a conception would have costly consequences, some of which might undercut the ultimate goals of the comparable worth movement.” (Compare his rather liberal-minded comments on sex discrimination under Title VII as set out in Stuart v. Local 727, International Brotherhood of Teamsters (7th Cir., 2014).)
  • There is his view of the societal worth of indigent litigation as expressed in Lumbert v. Illinois Department of Corrections (1987): “[T]he problem of litigation that generates social costs in excess of its social benefits is particularly acute with respect to litigation by indigents, since they cannot be deterred from suit by the prospect of having to pay their adversaries’ legal expenses should the suit be adjudged frivolous. The problem is even more acute when the indigent plaintiff is a prison inmate, because the costs of a prisoner’s time are very low. [The Appellant] Lumbert, for example, has filed more than thirty lawsuits, all as an inmate, since 1980.”

To cap off this all-too-modest offering of Judge Posner’s views, there is his take on the legal academy and some of its work product – a topic that will be explored in one of my forthcoming interviews with the Judge. Until then, here is a sampling:

  • There is his view of legal theory, which he summed up this way: “I think legal theory is just baloney. I think you could take originalism, textualism, purposivism and just throw it out.” (See also his remarks at a Columbia Law School Federalist Society event, Oct. 18, 2012)
  • There is his view of Ronald Dworkin and moral reasoning, this as set out in a 2007 tribute to Dworkin: “As for Dworkin’s derision of pragmatism (philosophical as well as legal) — to which he has applied such terms as “dog’s dinner” and “empty,” comparing me both to a “bulldog” and to an “ostrich” (covering quite a lot of ground in the bestiary) — there we are at complete loggerheads. The fundamental difference between us is that he believes that there is such a thing as moral reasoning and that it should guide judges, and I, while not doubting that there is such a thing as morality and that it influences law, believe that moral reasoning is just a fancy name for political contention.”
  • There is his view of the legal academy, this as told to David Margolick of the New York Times in late November of 1981: “I think it is a failing of legal academics that they tend to write in a mealy-mouthed way, always protecting their flanks, always posing as reasonable, balanced, moderate people.”

And not to be overlooked, there is his controversial (and often misunderstood) article co-authored with Elizabeth Landes, “The Economics of the Baby Shortage” (1978), of which he once said: “Whenever critics of the law-and-economics movement want an example of its excesses they point to what is popularly known as [our] ‘baby selling’ article . . . .”

Elena Kagan on Posner’s Judicial Opinions

Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think — about what the law is doing, about what the law should be doing, about why it all matters. Law professors — actually, anyone who cares about our legal system — should esteem these opinions for this quality . . . . . — November 2007, Harvard Law Review

The Will to Greatness

There he stands: thoughtful, playful, analytical, cynical, exceptional, and habitually controversial. His final portrait would also include broad strokes of complexity, both personal and professional. But that time is not yet here, for there remains spirited breath in his lungs and many novel ideas tumbling in his mind, ideas that may yet blossom into the destiny that is ours to behold.

Meanwhile, one wonders:

  • How will his fate play out?
  • How will he be regarded when three or more decades divide the man and his life work from those who trade in the law of an unknown future?
  • Will the name “Posner” spring from the lips of impressionable young law students the way “Holmes” or “Cardozo” does now?
  • Will the judges of tomorrow take heedful note of his legacy or will he assume a nameless place alongside those whose star shown brightly while they lived but flickered away evermore with the dawn of each new generation?

Behind all such questions lies a clever but nonetheless sound admonition, namely, “the ‘past’ is what we make it.” Jerome Frank’s witty words (from his 1945 Fate & Freedom book) remind us that the past is still being shaped into what may or may not be a template for tomorrow’s “memory.” How history will judge Richard Posner will depend on how his thoughts align with the future and how his words resonate with those who have need to mold them for their own utility. (And a dollop of luck is always a vital ingredient.) No matter that the past is never what it once was; what counts is that it serve the living and hopefully these who follow them. If the benefits his legacy outweigh its costs, Judge Posner will be well served and long remembered. But only if – it is the wager of those who aspire to be great.

imagesEven as this series of blog posts unfolds and Domnarski’s 120,000 word biography nears, Richard Posner goes about his daily chores seemingly oblivious to it all. And in a sense he is — true to form, he is too busy to be concerned with what others think of him. In another sense, however, he has his eyes on it all. Why? Perhaps because ever since his youth Posner has yearned for greatness, for a place in America’s gallery of greats. More than anything else, that will to greatness may well explain the boy born of immigrant parents / the exceptional high school pupil / the gifted undergraduate  / the brilliant Harvard Law School student / the remarkable Supreme Court law clerk / the talented appellate lawyer / the illustrious law professor / the daring public intellectual / and the exceptional jurist known as JUDGE POSNER. Shy as he can be, he is not modest when it comes to his higher calling.

That said, he takes exception to such claims:

I have never yearned for greatness! In my youth I thought I would enter my father’s business after completing my education. When I did well at Harvard Law School I thought I would go to work for a law firm after clerking. I got deflected into working for the government, then was persuaded to try law school teaching, eventually to become a judge. I never yearned for or expected to be “great.” I’m not in a class with the judges I admire; moreover, the era of greatness for judges may well have ended, owing to changes in the nature of cases, the vast increase in the size of the judiciary, and other factors.

In the end, it may be best to echo the Great Bard’s words (albeit in expanded form): “[B]e not afraid: some are born great, some achieve greatness, and some have greatness thrust upon ’em,” and some merely yearn for greatness.

Onward!

To be sure, there is more, much more (see, for example, The Posner Project). In the mix of it all, the Judge’s detractors – including those on the High Court, in Congress, and in the legal academy – will heap on him some of the same kind of criticism leveled against his favorite jurist, Justice Oliver Wendell Holmes. And yet, like a steadfast soldier, he moves onward to the next battle. Or to vary the metaphor slightly and invoke Posner’s own words: “The path forward is the path of realism.”

In the next installment (the first interview in the series), Posner talks about his life and life views. Among other things, he discusses his parents, his interest in the poet Yeats, his Harvard Law School years, his Brennan clerkship, his years at the Department of Justice working under Thurgood Marshall, his view of the ’60s, his onetime thoughts on being a Supreme Court Justice, and his views on public intellectuals, morals, the New York Times, and popular music.   

Next Installment: “The Man Behind the Robes”

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1 Response

  1. Adam says:

    “Will the name “Posner” spring from the lips of impressionable young law students the way “Holmes” or “Cardozo” does now?”

    As a recent law grad: it already does. Posner’s opinions show up in casebooks just as much as Holmes and Cardozo, if not more, and his opinions are more interesting reads than any other judge except for maybe Kozinski.