Take him for all and all. – William Shakespeare (circa 1600)
I live on my own credit. – Friedrich Nietzsche (1888)
I believe in cremation. No tombstone for me. – Richard Posner (2013)
This is twelfth and final installment in the Posner on Posner series. (Note: some of the hyperlinks below may open in Firefox or Chrome but not in Safari.)
His temperament: largely solitary and characteristically confident. His manner: often distant and frequently detached. His character: habitually unconventional. He seems indifferent to creeds and causes. And he can be steel-like — cold, calculating, and controlling. Then again, catch him at the right part of the day, at the right tick of the clock, and with the right circle of people and he can be witty and lively in his own unique way.
In all of these respects and others, one soon enough senses the obvious: Richard Posner is different. Nothing pejorative here, just descriptive. Besides, it has been a feature of his persona for so long as to have become his trademark. While there have been a few modifications of his views over the decades, the man himself has remained basically the same, though he may (?) have mellowed a bit. That said, Posner is ever the maverick; that is his calling card to the world.
The more we learn of him, the more he defies the norm of how most people think about most judges. Though we already know much about the public work of this jurist, there is still much to learn about the man himself — his inner thoughts, his private communications, and his personal traits. The biographical story is, after all, the most revealing of all stories.
Richard Posner turned 75 earlier this year (on January 11th – the same date of William James’ birth). The New York born jurist is in good health and exercises regularly: “A great deal,” he told me. “It’s my principal non-working activity.” When not reading or writing, he expends his energy on an elliptical trainer and does balance exercises. “I have an elliptical trainer at home and also do a lot of walking outside,” he adds. He takes heart-pumping walks inside, too, and is known for climbing “the stairs to his office on the 27th floor of the Everett M. Dirksen Federal Building in Chicago.”
To look at his fit frame one might guess that he exercises. And like all else in his life – be it mental or physical – Posner takes such matters seriously. “I have a personal trainer twice a week. He puts me through all sorts of strenuous exercises, including push-ups and pull-ups.” And then there is “boxing with a sixty-pound hanging leather punching bag (not a live person).”
Though he dislikes professional boxing, he sure loves to box . . . with a boxing bag, that is. He pounds away with his Everlast gloves landing blow after body blow at this stuffed specimen of a man. It is all part of his private workout regimen in the basement of his trainer’s quarters. “I had [a punching bag] of my own,” he says, “but I had to give it away because it upset the cat [the famed Pixie]. The bag was suspended from a steel frame that, because of the unevenness of the floor in the only room in which the contraption fit, rattled disconcertingly.” So he took his pounding elsewhere. And why this form of exercise? “My doctor says that boxing is excellent exercise,” he adds.
The boxing image fits – well, sort of. On the one hand, Richard Posner is a natural born boxer given all the cerebral bouts he has been in over the years – and he still returns to that ring time and again like a resilient Rocky Balboa. On the other hand, Richard Posner is too brainy / too soft mannered / and too genteel to engage in the real sport. Besides, he’s too pragmatic to like such a brutal sport: “I worry about brain damage to professional boxers,” he tells me.
Mix his cerebral and physical sides and what do you have? Quite simply, a man who likes to punch but doesn’t like boxing; a man who savors the sport of dialogic give-and-take but disdains the mano a mano reality of the ring; and a man who, at 75, is determined to remain mentally and physically fit, if only to force the Grim Reaper to go several extra rounds.
Holmes & Posner: Similar Yet Very Different
Sometimes comparisons are made between Oliver Wendell Holmes and Richard Posner. And Holmes is the jurist Posner most respects – that “most illustrious figure in the history of American law” is how he described him in the book Posner edited of the great Justice’s works. However true such comparisons might be, it is useful to consider how the two jurists were situated at the same points in their lives. To do that, one must turn the biographical clocks back and then forward.
* * * *
1916 was a good year, a very good one for Justice Holmes. That said, he penned no great opinions or scholarly works and gave no significant speeches that year. And yet it was a memorable year. Why? Because that was the year that Holmes turned 75 on March 8th. Four events occurred that year that made it a special one in the jurist’s life.
First, there was the small dinner party that his wife Fanny had arranged. It was a modest affair: a few friends (all accomplished men), some good food and drink, and birthday well wishes to cap it all off. As the guests left, the tall and tired jurist headed towards his library when he suddenly heard strange sounds – the sounds of birds, many of them. What could it be? He went downstairs to find out. Much to his surprise, and there beyond the parlor, was young group of admirers tooting away with bird callers in his birthday honor. All Fanny’s doing, of course. There was “much laughter and jaw,” recalled Holmes, “until after midnight.” One of celebrants went so far as to write “some very pretty verses,” which touched the white-haired Justice. By the time the parting hour arrived, Holmes was quite content: “Altogether it was very charming.”
Second, there was the Harvard Law Review festschrift (29 Harv. L. Rev. 565) that Felix Frankfurter had organized. Now OWH was being publicly honored, and in print. And what an esteemed group of men: Professors Felix Frankfurter and Frederick Pollock, Deans Roscoe Pound and John Henry Wigmore, Judge Learned Hand, and Morris Cohen, the philosopher. Writing to Frankfurter in April of 1916, Holmes expressed his appreciation: “Very few things in life have given me such pleasure.”
Third, in June of 1916 the Senate confirmed Louis Brandeis. Once confirmed, Holmes opined that Brandeis “will make a good judge.” And so he sent him a very short telegram: “WELCOME.” It was the beginning of a judicial friendship that would help buttress Holmes’ fame . . . even at 75.
And finally, that was the year that Holmes met Harold Laski, a young British political theorist who would also have a hand in shaping the future of Holmes’ thought.
Of course, Holmes lived another 15 years, during which time he solidified his reputation and further secured his position in the gallery of great jurists. In the years following his 1916 birthday, Holmes wrote memorable opinions (majority and separate) in cases such as: Hammer v. Dagenhart (1918), Schenck v. United States (1919), Abrams v. United States (1919), Silverthorne Lumber Co. v. United States (1920), Adkins v. Children’s Hospital (1923), Gitlow v. New York (1925), United States v. Schwimmer (1929), and Baldwin v. Missouri (1930).
* * * *
Holmes savored the shared life; Posner bears it. Holmes socialized, Posner exercises. As for birthday celebrations and the like, RP has no time and little patience for such flattery: “I don’t like celebrations or parties” he says with icy certitude. At 75, there were no festschrifts for Posner (though an issue of the University of Chicago Law Review commemorated his 25 years on the bench – notably, the issue contained several critical essays). And no Louis Brandeis or Harold Laski is likely to influence his cerebral course (though in earlier years he had Aaron Director, George Stigler, and Gary Becker, who all helped to shape his thoughts). And so, when his life clock turned 75, it came and went sans any surprises . . . and that’s the way he likes it.
By three score and fifteen, Posner, like Holmes, has accomplished much. Notably, he has written more (far more) than the famed jurist, and Posner’s Economic Analysis of Law may well have as much influence and staying power as Holmes’s The Common Law. And in his finer opinions, Posner displays “a fierce intellectual curiosity, a genuine engagement with ideas, an eagerness to cut through the legal babble to get to the core of the issue,” says Professor Geoffrey Stone, “and an evident delight in occasionally reaching results that startle admirers and critics alike” — all exceptional traits for a sitting federal appellate judge.
While Judge Posner has no single opinion that is likely to be as memorable as Holmes’s Lochner dissent (he is, after all, a circuit judge, not a Justice), the cumulative impact of Posner’s many writings (both on and off the bench) has certainly left a significant imprint on American law. Even so, the question remains: Will he prove to be like Holmes and further solidify his fame, or has he already reached the pinnacle of his career in law and letters?
Judicial greatness is often in the eye of the beholder. Many of the standards adopted for determining the greatness of a judge are designed to ensure the selection of particular judges or to favor judges who reach certain substantive outcomes. For example, in suggesting creativity, intelligence, and frequency of citation as plausible yardsticks for measuring judicial greatness, Judge Richard Posner has largely settled on standards that reflect best on himself. — Michael J. Gerhardt (1995)
Though he cares not about reputation or greatness when it comes to his own record (or so he likes to say), he does like to fish in such waters – only witness his book Cardozo: A Study in Reputation (1990) and his 1994 Yale Law Journal review essay of Gerald Gunther’s biography of Learned Hand (the review is titled “The Hand Biography and the Question of Judicial Greatness”). In both works Posner went to great lengths to formulate criteria for measuring judicial reputation and/or greatness. Though it is hard to imagine that the idea did not occur to him, Professor Gerhardt’s point is surely true – Posner does rather well by Posnerian criteria. (See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991.)
Whatever the methodology of measuring judicial greatness, the sheer volume and diversity of the Posner corpus of writings render the evaluative biographical task rather daunting. It is a brute biographical fact: The Posnerian tentacles are too numerous and reach too far for any single work by a lone biographer to grapple with authoritatively. To further the biographical process along, some exacting scholarly work would have to be done by several experts who could evaluate Posner’s take on a given field of the law (see e.g. here). Those areas would include:
- administrative law
- animal rights (see here & here for RP’s views)
- civil procedure
- constitutional law
- corporate law
- criminal procedure
- federal courts
- habeas corpus
- intellectual property
- labor law
- prisoners’ rights
- securities law
- telecommunications law, and
- women’s rights
By the same measure, there would also need to be experts in economics and various areas of the humanities. Posner’s writing style would have to be studied as well (on this count Mr. Domnarski has already done much, and ably so, and will do more in his forthcoming biography of the Judge). Then there is Posner’s view of judging.
Judges are not umpires, calling balls and strikes. — Richard Posner (1995)
My job is to call balls and strikes — John Roberts (2005)
Additionally, there would have to be some allowance for a probing study the man himself — the persona of Richard Posner. After all that, someone would have to step back and compile a comprehensive overview in order to put things in full biographical perspective. (Such a work might be along the lines of one of the books in the Cambridge Companion series.)
And yet more is needed: If it were to be rigorously true to its subject, any intellectual-biographical portrait of Richard Posner would include, but could not be limited to, some tabulation of how other courts and scholars have referenced him – not just the number, but also the nature of the citations. Beyond the citation count, there is this question: If one were to map out the effects, if any, of Posnerian thinking over time, what would they show? Not just the economic effects, but also the jurisprudential, political, social, psychological, environmental, and human (as in humane) effects? If his reputational footprint were to prove as immense as his publication record, what would what future generations think of a Posnerian social order?
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