On Judicial Reputation: More Questions for Judge Posner
Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. — Richard Posner (1994)
We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy. — Richard Posner (May 5, 2011)
I have never yearned for greatness! — Richard Posner (November 26, 2014)
This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.
In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”
Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.
Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”
According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.
So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).
All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.
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Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?
Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.
Posner on the Criteria for Judicial Greatness
For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is . . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]
Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?
Posner: A little, not a great deal.
Question: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?
Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.
Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?
Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.
Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?
Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.
None of the [current Justices] has any empirical, technical background. They’re just humanities majors. – Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.
Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?
Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.
Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?
Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.
[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]
Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?
Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.
Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important.
Posner: It’s the anti-religious attitude that human beings should create their own values; it exalts freedom. There is a hint of that in Holmes’s free-speech opinions.
Posner on Gerald Gunther’s Biography of Learned Hand
What the book is not is critical, analytical, theoretically ambitious, “deep” . . . What does not lend itself to Gunther’s style of historiography is the actual core of Hand’s career: his fifty-two years as a federal judge-his countless votes and 3000 published opinions (a misleading number, though, as we shall see) distributed over many different fields of law. . . . Much as Gunther admires Hand, the emphasis he places on Hand’s constitutional views does disservice to Hand’s reputation. For it puts Hand in direct competition with Holmes, a competition that Hand, good as he was, cannot win. [Source here]
Question: Despite what Holmes said to him in 1931, by 1958 Learned Hand seemed ill equipped to “capture the imagination of his time.” According to Constance Jordan (the editor of the Judge’s correspondence), Hand’s little book The Bill of Rights (1958) “received a generally negative response.” In a subsequent 1963 printing of the book, Judge Charles Wyzanski observed: “Judge Hand’s thesis has not been supported by a single eminent judge or professor.” And yet, Learned Hand has done well by biographers and appears to have assumed a place in the pantheon of American jurists. Why?
Posner: That book was not good, but he was very old. His reputation rests on earlier opinions and some articles, also earlier.
Question: In what particular way, if any, did Felix Frankfurter distinguish himself as a Justice? And what was his greatest failing?
Posner: His writing was often pompous, overblown, and sometimes downright phony. But he wrote a number of good opinions.
Question: Part of Holmes’ greatness seems to be attributable to the persistent efforts of the editors of The New Republic along with those of Harvard Professor Felix Frankfurter. In other words, a great judge’s reputation depends in real part on promoters, especially those in the legal academy who author casebooks. Do you agree? Can you say a few words about that and how a judge cultivates such a following?
Posner: I don’t think judges should “cultivate” anybody.
Posner on Principles
We should mark the family resemblance between Bickel’s moral vanguardism, despite its cloak of principles, and the active side of Holmes’s “can’t helps” or “puke” test. Both are delaying games in the sense that if public opinion is very strongly in favor of some policy that the Justices cannot stomach, eventually they will have to give way; the moral vanguard has to stop its march if there is no one following it. But there is an important difference between the two approaches. Bickel thought that the Justices could educate the masses to fall in line with the Justices’ superior insights. Holmes harbored no such hopes, which he would have described as illusions, because he was skeptical about the force of moral reasoning. – Foreword, Harvard Law Review (2005)
Question: In Reflections on Judging you say of Judge Henry Friendly that he was “quite possibly the all-around analytically most proficient appellate judge in American history . . . .” Perhaps consistent with that description, if only in a general sense, in your foreword to David Dorsen’s biography of the Judge you describe Friendly’s judicial opinions as “almost Teutonic.” By that did you mean turgid and/or highly analytical and thus difficult to comprehend? If so, is that a virtue or a vice for a judge aspiring to be great? Or did you mean something altogether different from what I have suggested?
Posner: He didn’t write very well. His opinions tend to be too long and too detailed.
Question: In your introductory comments to the Friendly biography, you noted that some of what you learned in reading that book induced you to make “certain changes” in your “judicial practice.” What were those changes and how important do you consider them?
Posner: I decided to spend more time on my cases and less on academic research and writing. I wanted to be as good as Friendly! I didn’t and don’t regard that as an attainable goal, but there’s nothing wrong with having goals for which one strives without complete success.
Question: “The institution of the signed opinion,” you maintain, “enables a judge to cultivate an admiring audience outside of, and even antagonistic to, his judicial colleagues . . . .” Is there something distinctive about your signed opinions that one would not find in a per curiam opinion you wrote? And for posthumous purposes, would you consider listing your per curiam opinions in a compilation of all of your judicial opinions?
Posner: I stopped issuing per curiam opinions some time ago; it didn’t seem to me that “per curiam” was sending a useful signal; I couldn’t see the point of concealing authorship. West asks each judge to list his per curiams, and they are then included in the annual volume of a judge’s opinions, which West prepares and sends to the judge. So anyone who is interested could find out which per curiams have been mine.
On Justice Brennan
William Brennan was a very nice person and a very good boss [Judge Posner clerked for Justice Brennan]. But he was indifferent to what was in the opinion; he just cared about results. He had been a very good judge on the New Jersey Supreme Court. He had legal analytic abilities. He just didn’t care about them as a Justice of the U.S. Supreme Court. (Interview with Eric J. Segall, N.Y. Rev. of Books, Sept. 29, 2011) (For a kinder assessment, see Richard Posner, “A Tribute to Justice William J. Brennan, Jr.. 104 Harv. L. Rev. 13 (1990).)
Question: In terms of your own approach to law, your analytical and rhetorical skills, and your overall judicial temperament, what great judges are you most like and which great ones are you least like? And why? (I trust our readers will understand that in asking such a question I invite you to eschew any needless self-effacement.)
Posner: I don’t think I’m much like any of them.
By way of a closing note, readers may find it helpful to consider yet one more statement by Judge Posner on the kind of things he thinks a biographer should focus on in analyzing the reputation of his subject.
[In Learned Hand’s case as with others, one must examine his] judicial workload; [study] how he allocated his time between his judicial activities and his extensive social (and at times political) life outside the court; whether he cut any comers in his judicial work; how heavily he relied on the parties’ briefs and oral arguments; where he got the idea for the “‘Hand formula”; whether his opinions differ systematically from those of his colleagues along such dimensions as length and number of citations; whether his opinions were and continue to be cited more heavily than those of his colleagues; how often he made factual or legal errors; how opinion-writing assignments were made in his court; whether he consciously specialized in any particular classes of case; how often he cited his own opinions; why he wrote so few diversity opinions; whether he got his opinions out faster or slower than his colleagues did; whether he tried to keep up with the opinions of other courts; how often he was reversed by the Supreme Court . . . . [Source here]
As already noted, Judge Posner was critical of the late Gerald Gunther for not devoting more attention to such matters. All of this and more will take on new meaning with the advent of the forthcoming biography of Judge Posner by William Domnarski.
This next installment, the ninth, in the Posner on Posner series is titled “Posner on Same-Sex Marriage – Then and Now” (which does not include questions posed to the Judge since the 7th Cir. case is on appeal). The post after that is “Posner on Judicial Workloads.”