Category: History of Law


The Man Behind the Robes — A Q&A with Richard Posner

I myself am a counterrevolutionary. I am not eager to be sent to the countryside to do farm work while wearing a dunce cap. (2009)

I’m much less reactionary than I used to be. (2014)   – Richard Posner

This is the third in a series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, and the second one here. (My interest in Judge Posner goes back almost a quarter century. See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991 (commenting on Posner’s Cardozo book).)  

The measure of a man is gauged in different ways. For some, it moves along a spectrum of social approval. For others, it is personal perfection. For a few, it is mastery — that ability to excel in one’s life calling. And then there are those who take public service seriously. For yet others, it is legacy – that long story after the life story. In that journey, whatever one’s direction and destination, a few are bold into the fray, others calculating into the conflict, and still others are quiet into the clash. How we measure them depends on where we stand, how we judge the end game, and just how impartial we are. Then again, how we judge someone may reveal more about us than the person being judged. Bear all that in mind as you read the words of the man — an atypical  man — who is the focus of this and the other interviews.  

Richard Posner

Allen Richard Posner (see below)

How, then, to measure Richard Posner? It is not an easy task; he is complex. Because of that it is easy to misjudge him. Up close, Posner is unusual. For one thing, his candor can be unnerving. Thus, his personality in one-on-one situations can be odd, unless one is attuned to him, which requires being on his psychological wavelength. For another thing, he is somewhat unconstrained by many social mores. He is, for better or worse, a take-me-as-I-am sort of individual. But give him distance from the province of personality (conventionally defined), and he works well in the world of rules and reasons. That is his domain. In that realm, he appreciates informed judgment and delights in being daring. True to his cerebral bent, he loves to be rational (tag it Aristotelian eros), even if it leaves him the odd man out. In that sense, there is something peculiarly fascinating about him – that rara avis who seizes our attention even when we tend to turn away.    

What follows are the first in a series of questions I posed to the Judge about his life and life views. (Note: Some links will open in Firefox or Chrome but not in Safari.)


Question:    Were you born Richard Allen Posner, or was Allen your first name? [Hat tip to Professor Peter Irons.]

Posner:       That’s true [about being named Allen]. But my parents always called me ‘Dick.'” [RC: The Judge has his law clerks address him as his parents did.]

Question:   You were exceptionally revealing in the New Yorker profile that Larissa MacFarquhar did back in 2001 – the story in which, among other things, you described yourself as “an imperfectly house-broken pet.” You also compared yourself to your late Dinah, “playfulbut with a streak of cruelty.” (Dinah has since died.) Two questions:

  1. Why? What prompted such unconventional candor?
  2. Do you have any regrets?


  1. Larissa was very skillful at extracting unguarded comments from me. She is an excellent reporter. [RC: In a 2003 interview with Howard Bashman, Judge Posner said: “MacFarquhar. . . exaggerated my role in the law and economics movement, but that’s fine!”]
  2. No.

Question:      In what respects are you most like and unlike your parents?

Posner:         I share my mother’s love of literature, and my parents’ lack of religiosity (I believe the word “God” was never mentioned in our home). My father [Max] was introverted, like me. I didn’t share my parents’ politics, which were extremely left-wing. It’s unrealistic to think me much like my parents, as they were born in 1900 and 1901 respectively, into central European families with no money who immigrated shortly afterward to the United States. There is no comparison to my situation at and after birth, by which time (1939) my parents were prosperous, educated, and completely assimilated Americans.

Cleanth Brooks

Cleanth Brooks

Question:    You were an English major at Yale College and did your senior thesis under Cleanth Brooks (the famed figure of literary criticism). Your thesis was on William Butler Yeats’s late poetry. Why English, why Yeats? And tell us a little bit more about you senior thesis – its title and scope.

Posner:   My mother [Blanche] was a high school English teacher and started me off on literature when I was an infant — she read Homer and Shakespeare to me from a very early age. I majored in English at Yale because I was already steeped in literature and Yale had the best English department in the country. I discovered Yeats’ poetry and loved it and still do. I don’t recall the title of my senior thesis. I do recall the principal theme, which was that his poetry was “reflexive,” in the sense that much of it, I thought, despite its ostensible subject matter, was about poetry itself, which after all he new best.

Question:   What was your draft status? How did you navigate the whole military service matter?

Posner:    Deferment was automatic in my day (before the Vietnam War heated up) while one was a student. My first job after graduating from law school was as a law clerk at the Supreme Court. Justice Brennan, my boss, wrote a letter to my draft board before I started the clerkship asking it to defer me for the clerkship, which it did (it didn’t have to). During my clerkship year my wife had our first baby, and at the time (1963) that was an automatic deferment. I never heard further from anyone about the draft.

Alex Bickel

Alex Bickel

Question:    When you were the president of the Harvard Law Review (vol. 75, 1961-62), several prominent persons (e.g., Alexander Bickel, Felix Frankfurter, and Henry Friendly) published on your watch. Do you have any memorable stories you might share with us?

Posner:      Bickel was not a Harvard Law School professor (Yale instead), and I broke with tradition in asking him to write the Foreword to the Supreme Court section in the first issue.

I also got into some trouble with the faculty over publishing a very critical review by Frederick Bernays Wiener of an excellent revision [of Wigmore’s evidence treatise] by John T. McNaughton, one of the law school’s professors (later a key aide to Robert McNamara in the Vietnam War).

Question:       Were there any professors you had at Harvard who stood out in your mind? If so, who were they and why do you remember them?

Posner:         There were a number of excellent professors: in no particular order they were Paul Bator, John Mansfield, Abraham Kaplan, Derek Bok, Donald Turner, Walter Bart Leach, and (probably the best) John Dawson. I may have forgotten some others who were good. Turner’s field was antitrust, and he had a Ph.D. in economics from Harvard. We were friendly. To some extent, he sparked my interest in economic analysis of law.

Question:       How did Paul Freund come to select you for a clerkship with Brennan?

Posner:        He was an informal adviser to the law review so I got to know him pretty well, though I never had him in class. I was the president of the law review and the highest-ranking student by grades, so I was a natural pick for a Supreme Court clerkship. I didn’t apply—he just picked me. I actually wasn’t particularly interested in clerking.

Question:       You worked with Thurgood Marshall while he was Solicitor General. What was your opinion of Mr. Marshall back then?

Posner on Thurgood Marshall

He was a good boss in the sense that he backed the staff, which of course was all I cared about, but had rather little interest in the job. It was just a stepping-stone job. He had been a great trial lawyer, and I don’t think appellate law interested him particularly. Before becoming SG he was on the Second Circuit briefly, and after he was S.G. he, of course, was on the Supreme Court. I don’t think any of those jobs drew on his strengths, which as I say was as a trial lawyer.

 Question:      While in the S.G.’s Office you argued nine cases before the Supreme Court. Do any of those case stand out in your mind? Are you especially proud of your performance in any of them?

Posner:          I remember the antitrust cases, like Von’s and Schwinn, but I don’t really remember my briefs or oral arguments in them.

Question:     You were general counsel on President Johnson’s Task Force on Communications Policy. How did that come about and what sort of things did you do in that capacity?

Posner:       I probably was asked by the staff director, Alan Novak, but I don’t actually remember. My title of “general counsel” had no meaning. The task force had a small staff. I learned a lot of economics from our economist staff member, Leland Johnson, a very smart economist from RAND. I did most of the writing for the report. The report was influential in the deregulation movement, and also led to my being asked to do a good deal of consulting in telecommunication policy during my time as an academic.

Question:     What is your sense of the 60s counter-culture? Read More


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

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 Read More


Coming Soon: Law School Tuition $11,000

coquillette While today’s Harvard Law students are about to pay the hoary institution as much as $54,580 in annual tuition, a new law school designed on the original Harvard Law model plans to charge $11,000.  I have just received an offer to join its faculty and find the model intriguing.

Designed by the renowned legal historian, Dan Coquillette, once Dean of Boston College and former colleague of mine, the new school will have no administrators but rather an automated system, no books but a digital library, and two faculty members who will teach three courses per semester to a class of thirty-five students.  There will be no ABA accreditation and the school will have to compete on the apprenticeship model.

Dan’s idea arises from his research for his magisterial history of Harvard Law School, where Dan has long been the Charles Warren Visiting Professor of American Legal History.  Called “On the Battlefield of Merit,” Harvard University Press will publish this multi-volume history, volume one telling of how apprenticeship competition nearly  destroyed the infant law school.

In Harvard Law’s golden age, there were just two faculty members, Joseph Story and Simon Greenleaf, who taught all the courses. With a faculty-student ratio of 17.5:1, Story also published a treatise a year.

As Dan explained in his appointment offer to me:

The students of the Story-Greenleaf School read like a Who’s Who of the New Republic, and they uniformly praised their Law School experience, particularly the close mentoring and inspiration they got from their two teachers.  Of course, Story and Greenleaf knew every student in the School. The physical plant was terrible; the Library, open to Harvard Square, often lost more books a year then it gained; and the only nonacdemic employee was a janitor who spoke Latin.  The students did not care, as long as there was Story at one end of a log, and a student at the other.

If we replicated that School exactly, setting faculty salaries at today’s levels and including all overhead, student tuition would be 20% of what they pay now. I am ready when you are.

I believe that this offer is non-transferable but, hey, you never know.

BC Book Club

Annual Book Author Party, BCLS Faculty (2004): Zyg Plater, Frank Garcia, Dan Coquillette, Jim Repetti, Paul McDaniel, Larry Cunningham, Bob Bloom, David Wirth, John Garvey.


F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.


President Fred Vinson

93px-Fred_m_vinsonFred Vinson is one of the more obscure Chief Justices and is widely seen as a mediocre member of the Court.  He was appointed by President Truman in 1946 (the last Chief Justice from the Democratic Party) and served until he died in 1953.  As Carlton Larson pointed out in this terrific piece a few years ago, Vinson would be viewed very differently if he had written Brown, which he almost surely would have he had not died when he did.  Vinson penned the opinions in Shelley v. Kramer, Swett v. Painter, and McLaurin v. Oklahoma striking down racial segregation, and there is no reason to think that he could not have in Brown (though whether it would have been unanimous is another question).

What I didn’t know until recently is that Truman really wanted Vinson (a former Congressman and Treasury Secretary) to succeed him as President.  He tried to talk Vinson into running in 1952, and with Truman’s backing Vinson would have been a formidable candidate for the Democratic nomination.  Vinson declined, though, partly for health reasons and partly because he felt that a Chief Justice should not reenter politics.


Fifty Years of “I know it when I see it.”

On June 22, 1964, Justice Potter Stewart coined the phrase “I know it when I see it” in his concurring opinion in Jacobellis v. Ohio. Fifty years later, that expression holds the distinction of being one of the few modern legal phrases to become a regularly accepted expression among educated Americans. The half-century anniversary of Jacobellis provides a fitting opportunity to ask why “I know it when I see it” has enjoyed such popularity and what lessons that phrase and its history might hold for us today.

Jacobellis reversed the conviction of an Ohio movie theater manager for showing obscene material in the form of the French film Les Amants (The Lovers), which included a sex scene at its conclusion. The court’s 6-3 decision was highly fragmented, with six opinions in total and the plurality garnering only two votes.

Potter Stewart

In a short 144-word concurring opinion, Stewart wrote that he found it almost impossible to define obscenity precisely, which should only include “hard-core pornography.” His now famous line concluded the opinion:

 “But I know it when I see it, and the motion picture involved in this case is not that.”

At the time, the pithy phrase actually garnered little interest in the public sphere. Many newspapers chose instead to focus on another obscenity case decided that same day, Quantity of Books v. Kansas. Those journalists who did write about Jacobellis largely ignored “I know it when I see it” and chose to focus on the legal technicalities the case posed.

While it is difficult to pinpoint exactly when Stewart’s iconic expression became common, we can chart its growing popularity via Google’s Ngram search engine. Google Ngram measures the percentage of English language books that contain a phrase up to five words long. Because “I know it when I see it” is seven words, I ran the search for each five-letter segment of the phrase (“I know it when I;” “know it when I see;” “it when I see it.”). The graph clearly shows the steeply rising and still growing interest in Stewart’s phrase, starting slightly after 1964:

I know it when I see it Ngram


The Ngram search also reveals some interesting instances of similar phrases, both legal and not, pre-dating Jacobellis. Consider two examples: In an obituary for Benjamin Cardozo that ran in the Columbia, Yale and Harvard law journals in 1939, Learned Hand praised Justice Cardozo for his wisdom, writing:

“And what is wisdom — that gift of God which the great prophets of his race exalted? I do not know; like you, I know it when I see it, but I cannot tell of what it is composed.”

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Richard Posner & NAACP v. Button — A Short History

Since I had to prepare remarks for a panel discussion for today, I was unable to do my weekly First Amendment News column. Instead, I opted to present an abbreviated essay from a work-in-progerss, actually two. In the main, I  stitched together something from one of my books (We Must not be Afraid to be Free) and a future article (“The Maverick – A Biographical Sketch of Richard Posner”), this in addition to some reliance on Justice Brennan: Liberal Champion (2010) by Seth Stern and Stephen Wermiel and other works. I also benefitted from the thoughtful assistance of Judge Posner and Robert M. O’Neil. The result is this post, also a prelude to a more scholarly work on NAACP v. Button (1963). Shortly, I will say more about Judge Posner’s involvement in Button, but before I do I thought it might useful to say a few prefatory things about the history of the case.

* * * *

The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

 For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate

Robert Button was the Attorney General of Virginia (1962-1970) who backed policies of Massive Resistance to prevent public school desegregation.

Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)

When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.”

Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)

At the same time, Justice Black circulated drafts of a dissent in which he claimed, among other things, that perhaps the law should be renamed “[a]n Act to make it difficult and dangerous for the [NAACP] and Virginia lawyers to assert the constitutional rights of Virginia Negroes in state and federal courts.” Then Black added a passage revealing how far removed he was from his days as a hooded member of the Ku Klux Klan. “The job of lawyers under [the] Constitution is not to lead revolutions, but to lead their people in taking advantage of the American methods for correcting injustice.” And courts, Black continued, had a responsibility to serve as “sanctuaries of justice.” To ignore that role here, he concluded, was to leave the courts “a little less havens of refuge than they were before this Virginia law was sustained.”

Robert L. Carter, lawyer for the NAACP

Robert L. Carter, lawyer for the NAACP

Justice Black’s internal comments exposed just how wide the ideological chasm had grown between the members of this Court. But Robert Carter wouldn’t get a chance to read them. Nor, for that matter, would anyone else. On April 1, 1962, before the Court could announce its decision in NAACP v. Button, Justice Whittaker retired on the advice of his physician. He was sixty-one. The “great volume and continuous stresses of the court’s work,” he explained in a written statement, had brought him to the “point of physical exhaustion.” That left a four-to-four split among the remaining jurists, who scheduled a rehearing of the case the following term. Then, a few days later, seventy-nine-year-old Felix Frankfurter collapsed at his desk from a stroke. He lived, but shortly afterwards he announced his retirement. Just like that, President Kennedy could appoint two new Justices—and Robert Carter could feel new hope.

 An audio of the arguments in NAACP v. Gray can be found here.

New Faces, New Result

By the fall of 1962, President Kennedy had successfully appointed to the bench his top two choices—Byron White and Arthur Goldberg. And it promised to be a busy fall at the Supreme Court after they were both confirmed. Sometime around then, as Stern and Wermiel recount it, Justice Brennan busily circulated a 63-page memo that detailed the activities of the NAACP and its Virginia branch.

After hearing rearguments in Button, the Justices met privately to discuss the case on October 12, 1962. Chief Justice Warren had not changed his mind since first discussing the facts a year earlier. “The NAACP has a right to be in business,” he began. “If this suit goes against the NAACP, it is out of business.” Justices Black, Douglas, and Clark also maintained their original opinions. So did the typically restrained Justice John Marshall Harlan, who continued to claim that Virginia’s new law was “plainly constitutional. . . . Brown v. Board of Education will never work out if it is left in the federal domain. The states must do it. We have no reason to reverse Virginia on this law.” Justice Potter Stewart, the Eisenhower appointee from Cincinnati with the unpredictable voting record, was the first of the veteran Justices to suggest a possible change of heart. “I am not sure,” he said, “but I am inclined to reverse.” Justice White, the first of the two new members to speak at the private conference, was even less certain than Stewart. “I do not know where I stand.” Goldberg was more certain. “There is a substantial equal protection point here and I could reverse on that,” he said. Read More


The English Bill of Rights of 1689

Before putting together a longish post on how the “Bill of Rights” evolved as a term of art in the United States, I wanted to note a related item of interest that I’m come across in my research.  The English Bill of Rights of 1689, which was the canonical text of the Glorious Revolution and an inspiration for our Bill of Rights, was also not called the “Bill of Rights” when it was enacted.  The actual name of the statute was “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.”  At some point not long afterwards, the Act became known as a bill of rights or the bill of rights, but I do not know how or why that happened.

UPDATE:  The formal Short Title “The Bill of Rights” was not given to the Act until 1896.


There & Back Again: John Rizzo & Yuri Nosenko

John Rizzo gave thirty-four years of service as an attorney for the Central Intelligence Agency, serving with distinction under eleven directors and rising to acting general counsel.  Yuri Nosenko, who died in 2008, was a lieutenant colonel in the KGB, a Soviet defector, and suspected double agent.

RizzoNosenkoWhat do they have in common?  A late night, one-on-one, vodka-soaked discussion of Nosenko’s three years of unremitting torture by Rizzo’s employer. The torture produced nothing, neither confirmation that Nosenko was a Soviet mole nor confidence that he was not.  In his new memoir, Company Man, Rizzo asserts that this meeting left an indelible impression on him as a young lawyer. But just how did he put that experience to use when he evaluated the legality of the “Enhanced Interrogation Program” that landed on his desk in the CIA General Counsel’s office after 9/11?

His answer is not found in his memoir.  But he did give an answer last week, when I asked him this question at an outstanding symposium on the future of national security law held at Pepperdine Law School.  The conference was organized by Professor Greg McNeal ably assisted by 3L Shelby Doyle and her team of student editors at the Pepperdine Law Review.

Comrade Nosenko’s story, and Mr. Rizzo’s answer, follow after the break. Read More

Now you can insist on control of your material. You can insist on veto power over everything; down to casting and choice of directors and script approval, you can insist on all those things. J.K. Rowling insisted on all those things. And J.K. Rowling got all those things because there were enough people interested in that. Now if you’re not J.K. Rowling, and you insist on all those things, the studios are not going to be very interested or less studios will be interested in it so you’ll get less money or none at all. Or alternatively, you can not insist on everything and you can just sell them the book and what they do with it is what they do with it and you have to live with it. You no longer have approval over anything, you no longer have…you know what I mean? And those are the two extremes. In between of course there’s a vast area of shades of gray.

— George R. R Martin


George R. R. Martin on Copyright, Inheritance, and Creative Control

He cares much more about French dynastic history than you do.

He cares much more about French dynastic history than you do.

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.


MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

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