Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis — he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

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4 Responses

  1. Mr. Mister says:

    Law clerks too often get blamed for the tepid, uninspired drudge that spews out of appellate courts every day. Truth is, many judges love the painfully stilted legal writing just as much as their law clerks do. It’s a prop for them in the same way that it’s a prop for law clerks. (Posner even wrote a law review article on this!) We should be happy that Posner has the initiative to write his own stuff and the skill to do it. But we shouldn’t assume that all federal judges are possessed with the latter trait and fail to exercise it for lack of the former.

  2. Joe says:

    I read elsewhere recently that Posner at times has his clerks work on opinions. I’m sure he’s his own man & the opinion was very good and all, but let’s not lay it on THAT thick.

  3. N.D. says:

    With all do respect to lawyers, there is nothing unique about an argument based upon a false pretense. To suggest that our sexual desires are immutable, and thus all sexual acts and sexual relationships are equal, would be a lie from the start. Since it is true that it is not unconstitutional to exist in relationship as husband and wife, the only question before the court should be whether or not it is unconstitutional to secure and protect Marriage and The Family. Judge Posner and his Court should certainly not be condoning marriage fraud by claiming that in order to be married, it is no longer necessary to exist in relationship as husband and wife.

    • Joe says:

      Judge Posner cites some studies that do show evidence that sexual desire is “immutable” a term that for constitutional purposes is at times not used in absolute terms. Your garden variety heterosexual would be surprised to be told that their attraction to the opposite sex is not fixed. But, regardless, immutability is not necessary to win a constitutional equal protection claim. It helps, but is far from sine qua non.

      Judge Posner’s opinion shows that same sex marriage “protects marriage and the family” or at the very least there is not good reason to block it to do so. To the degree “marriage” is being used in a religious sense and/or as a “natural” rights view, that’s a perfectly okay view to hold, but it is not the marriage that is currently protected by the Constitution.

      That document protects a broader view of marriage, including marriages that many religions deemed not truly marriages (e.g., those held after divorce decrees the religion feels does not truly break up the marriage in lieu of what Jesus or some other religious figure said).