Posted Jul 01, 2014 10:20 am CDT
Editor’s Note: Richard Posner is a judge on the U.S. Court of Appeals for the 7th Circuit, a senior lecturer in law at the University of Chicago and, some would reckon, a force of nature.
He’s a prolific author whose seemingly endless curriculum vitae includes books on topics as varied as the economic basis of justice, intelligence reform, Bush v. Gore, the failures of capitalism, the Clinton impeachment, law in literature, antitrust theory, disaster response and the origins of nude dancing. In a position that most often clings to anonymity as a jurisprudential value, Posner is a restless and engaged public intellectual. He is a frequent contributor to The New Republic and an occasional blogger and op-ed author. Besides his college (Yale ‘59) and law school (Harvard ‘62) degrees, he has received 11 honorary degrees.
More than this, however, he’s a candid—and for some, irritating—voice that strives for realism in his assessments of judges and justice. His criticisms of the U.S. Supreme Court are well-known and his prose occasionally acid. And when lawyer and author Joel Cohen asked if we would be interested in publishing an interview he had scheduled with Posner, we immediately agreed.
Posner had written a foreword to Cohen’s forthcoming book, Blindfolds Off: Judges on How They Decide, which will be released this month by ABA Publishing. The book includes interviews with 13 veteran jurists about the duties and realities of being a judge. Although it would not appear in his book, Cohen thought his project would be incomplete if he did not interview Posner on the same subject.
The result, as you will read in the following pages, is a far-ranging discussion (edited for length and concision) about judges, judging and the relentless curiosity that makes Richard Posner one of the most recognizable and formidable intellects in today’s vast and raucous public square.
JC: Judge, in your foreword to my forthcoming ABA book, Blindfolds Off, you argue that in interviews judges tend to be guarded or even lack self-awareness. That is, they may try to sincerely tell the interviewer what they believe about the influences that bear upon their decision-making, but they typically can’t do so.
Applying that thought to today’s interview, let’s assume that when you encounter a particular hypothetical district judge within the 7th Circuit at cocktail parties or bench and bar events, he’s invariably cordial to you. But this hypothetical judge isn’t so kindly about your views of judging behind your back. He sees you as academically brilliant, perhaps a genius, but in a blog, however, he states that you lack judgment—that what you say in your opinions or extracurricular writings is often nonsense, self-absorbed and maybe self-aggrandizing.
Does what this hypothetical judge says about you in the blogosphere have an impact on you? After all, you’re going to sit on cases where you’ll be asked to reverse or affirm his judgments.
RAP: [Laughter.] I don’t think so. I don’t go to cocktail parties. I don’t go to conventions or bar events—or at least very, very rarely.
JC: So put that aside. When you see him, even in the courthouse, he’s unfailingly cordial and courteous. Still, you’re saying that such remarks won’t affect how you view his decisions when you’re called upon to assess them?
RAP: No. I do think the “regard” in which a particular judge is held by appellate judges is a factor in deciding how much deference to give his factual determinations. Appellate judges are not going to defer to legal interpretations by a district judge—resolutions of “pure” issues of law. But if we’re reviewing criminal sentences or fact-findings, then how one regards the judge’s ability will, in a close case, have an influence. But I don’t think any of us would react adversely to a district judge who happened not to like us.
JC: It’s not that he doesn’t like you. He’s publishing articles or blogs that say you lack judgment, or that some of your decisions lack judgment.
RAP: He’s entitled to that view. Justice Antonin Scalia called me a liar for a criticism I made of his book with Bryan Garner [Reading Law: The Interpretation of Legal Texts]. He’s excitable and prone to anger. We’re actually old friends, although the friendship has been frayed somewhat, at least on his side. I don’t think I’d react to the district judge in your hypothetical case.
JC: But the fact that Justice Scalia might call you a liar, which you say doesn’t bother you, is hardly the same thing. You’re not going to be called upon to review his Supreme Court decisions or dissents. It would be quite different if, say, a district judge called you a liar and then you might be called upon to consider his judgments.
RAP: I don’t want to speak for my colleagues. I just can’t imagine reacting to something like that. I just don’t care. You want to criticize, that’s fine.
JC: Would you mind if a lawyer who appears before you were critical of you in that way?
RAP: No. We certainly get criticism from lawyers. I read a petition for a rehearing recently in a case in which I’d written the opinion, and the petition for rehearing called my opinion absurd. It was a little unusual to see that in a petition for a rehearing, but I didn’t react.
JC: That might be dangerous with some other judges, wouldn’t it, for a lawyer to be saying that the judge’s opinion was absurd?
RAP: It depends a lot on personality, right? Some people are more sensitive to these things. I don’t react to impertinence by lawyers, though I do to verbosity, evasion and interruption.
JC: You mentioned that Justice Scalia called you a liar. That was, as I understand it, in the context of a book review you wrote about Reading Law. The title of that review, published inThe New Republic, was “The Incoherence of Antonin Scalia.”
RAP: The New Republic insists on deciding on the title. I’m sure they do this with all their authors. They’re trying to stir up readership interest, so their titles sometimes have a harsher, more adversarial tone than my reviews.
JC: You could have pulled that review and said, “That is not what I want to say.”
RAP: No, they don’t tell me what the title will be—I first see it when the review is published.
JC: But did you write a note to Justice Scalia saying, “Nino, by the way, I wrote the article and while it may be somewhat provocative about your jurisprudence, please understand that title’s not mine”?
RAP: No, I wouldn’t do that.
JC: Wouldn’t you be concerned that he might take that title the wrong way—that it would be reasonable for him to presume that you authored or at least approved it?
RAP: Although I have reluctantly allowed The New Republic to enforce its policy of attaching the title without consulting me, I’m responsible, right? I can’t shed responsibility for the title when I’ve given the magazine the right to affix whatever title it picks.
JC: That’s precisely what I’m driving at. When you enter into the “real world” with your writings, isn’t there a risk you are potentially going to inflame, in this instance Justice Scalia, and potentially influence his view of a decision you wrote that he is asked to review?
RAP: No, I don’t think so. He just issued an opinion a few weeks ago that affirmed a decision of our court, which I had written. He didn’t make any snide comments about my opinion.
JC: Is that proof that you’d rely on for the proposition that he hasn’t formed a negative opinion based on that title?
RAP: I imagine he has a bad opinion of me, but I wouldn’t expect that to affect his decisions. The stakes are too high. I would be very surprised if he’d allow a personal dislike for a judge to influence his views.
JC: If that were true, that would be nice indeed. But it’s hard to believe that judges don’t react to this kind of stuff in the same way that most other people do. In fact, you say that judges are often not self-aware, just like most people are not always self-aware.
RAP: There’s a difference between pettiness on the one hand and ideology and experiences and other factors that influence judges. I don’t have an inflated view of judges, by any means, but I think they are good at adhering to the Aristotelian concept of “corrective justice”—which really just means impartiality, and thus not throwing the book at a litigant because he or his lawyer is obnoxious or insulting.
What we’re not good at is preventing hunch and ideology and personal experiences of various sorts—emotions, deeply felt beliefs, etc.—from influencing decisions. Some judges are terribly upset by drug trafficking, while other judges would like to see most or even all illegal drugs legalized. The ones who get very excited and think drug addiction is terrible may end up imposing sentences that are not sensible—in terms of deterrence, incapacitation, cost to the prison system and so on. That’s the real danger.
And I’m bothered by the fact that we judges often don’t know enough about a case to decide it sensibly, because often all we know is what the lawyers tell us, which is often very little. And when we don’t have enough knowledge to decide a case in an informed way, we necessarily fall back on how we “feel” about the case. But I don’t think petty reactions of judges to other judges or to litigants or their lawyers is a serious problem.
JC: In a review of An Affair of State, your book on the Clinton investigation, impeachment and trial, Linda Greenhouse noted that very few sitting federal judges offer any comment at all on the passing public scene. You’re obviously a rarity in that regard. Your CV for your publications on the University of Chicago Law School website runs 40 pages, with the 50-plus books you’ve written along with the countless magazine articles you’ve written, many of which have nothing to do directly with the law. They’re more about public policy and the like. Why do you write so much? Why do you write, for example, about Wikileaks? Or why did you write about gay marriage long before the current revolution on it? Or the Clinton impeachment while the matter was underway? What’s your goal or purpose?
RAP: We heard a case in 1990 [Miller v. Civil City of South Bend] that involved a strip joint in South Bend, Indiana—and the issue was whether it was constitutional to close it, or whether the erotic dancing in it was a form of protected speech. We held it was protected. I wrote a concurring opinion. The Supreme Court reversed our decision [sub nom. Barnes v. Glen Theatre Inc.]; Justice David Souter wrote a concurrence. It was his first term, before he discovered his “inner liberalism.” He essentially said that nude dancing was terrible because it created secondary effects, including criminal activities. Nonsense.
My encounter with the case got me interested in the history of nude dancing, beginning with Salomé’s dance of the seven veils. Legal regulation of sex is an interesting and important area of law, and so I was led to write a book [Sex and Reason, 1992]. And one of the issues, if you’re writing a book about the law and economics of sex, is homosexuality—now of course a major focus of legal activity. Having started off as a law professor, I was used to doing academic writing and I have continued to do it after becoming a judge.
JC: I’m certain someone’s asked you this before, but do you write to influence how society thinks?
RAP: No, not really. I enjoy writing. It’s sort of obsessive, I guess. If people read it, fine. But I’m not particularly interested in changing things. I don’t see the things I write as influential, but maybe it has some impact on the way people think.
JC: If a lawyer before you has some blog or article that you wrote arguing what the law should be but isn’t, and he cites it to you, how do you respond to that? Will you be influenced by these extralegal offerings you’re somewhat famous for?
RAP: Well, it’s very rare that anyone cites my academic or other nonjudicial writing in a brief. If what I’ve written about is still an unresolved issue and reflects my current beliefs, I don’t mind being reminded of it. Obviously if there is a Supreme Court decision in the way, I can’t enact my academic view into law.
JC: Do you have any concern when you engage in, for lack of a better word, a dust-up with Justice Scalia that it deflects from the respect the judiciary might have in the eyes of the public, or even the bar itself?
RAP: I don’t care about that.
JC: How can that be?
RAP: Because I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?
JC: So, Judge, you now have an opportunity to air laundry that perhaps hasn’t been aired.
RAP: It’s not a matter of airing dirty laundry; it’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary. For example, there’s wasteful spending on the courts (particularly on the courthouses, which often are wastefully large). There’s a work-ethic problem for some judges—you always have that when you have tenure; you have it with academics, with civil servants. But the most secure tenure is that of a federal judge. Some judges work very hard until they drop—others don’t. And of course judges are not uniformly able. There’s also a problem of excessive delegation to staff, mainly law clerks. And at least three circuits, the 5th, 6th and 9th, now have pre-assignment of judges. A case is assigned to a judge before argument, and he is expected to circulate a memo about the case in advance of argument to the other judges on the (normally three-judge) panel. The danger is that the other judges won’t prepare adequately, feeling it’s the assigned judge’s case. I consider that a questionable practice, deserving full examination. And there are other problems as well, including problems with the overall management of the federal judiciary.
JC: We talked before about whether, given the title of the New Republic review, you were attacking Justice Scalia. As you acknowledge, you’re responsible for the title even though it was not approved by you. What is that kind of thing communicating?
RAP: I don’t think attacking is the word. He writes a book about judicial interpretation. His book has errors. I connect that in part to the fact that in the front of the book there are acknowledgments of assistance from more than 90 people, including a number of law students. My guess is that much of the book was written by research assistants and was not adequately checked. I’m not saying the authors are bad people—that they’re greedy or that they’re lying. I’m saying that it’s an inaccurate book. I also happen to disagree with Justice Scalia’s philosophy of originalism. I think that’s legitimate criticism.
JC: Getting back to an earlier question: When you write articles, say, questioning the government’s “competency” post-Katrina or the government’s competency in terms of national security, is your goal to influence public opinion?
RAP: Out of the blue I was asked by the New York Times to do a book review of the report of the commission that analyzed the failure of intelligence that allowed the 9/11 attacks to occur. I reviewed it, and got interested in it. A classmate of mine from Yale who had a lot of contacts with people in the intelligence community told me he’d sent a copy of my review to every single U.S. senator. He wanted me to meet a lot of people—CIA officials, FBI, NSA, etc. It was really fun getting to know those people and learning about national security intelligence, and I wrote about it, and I thought I had good ideas for reform. So I would have been happy to have some influence, but eventually, having said all I had to say about the subject, I dropped it.
JC: Would your review have had the same influence if you had written it not as a circuit judge but simply as a law professor at Chicago?
RAP: I don’t think it had anything to do with the judging business. Most of what I wrote about was how to organize an intelligence system. We have more than 20 intelligence services. There’s a lot of duplication of effort, a lot of destructive bureaucratic rivalry. There’s a great deal of overclassification. There is excessive concern about backgrounds of people, excessive risk aversion, in hiring people who might have come from a foreign country. Incompetent computerization. Nothing to do with the judiciary.
JC: So when you write this kind of stuff that’s critical of the government, one would think the government would want—although they probably wouldn’t do it—to seek to recuse you because you have some opinions based on your learning outside of the four corners of the case. I assume, though, they don’t seek to recuse you. Am I correct?
RAP: Well, in my 32 years and 6,000 argued cases, I think there have been only two motions to recuse me. One was a case in which the district judge had raved over the expert testimony given by a friend and university colleague of mine and former employee of my consulting firm. So I thought, no, I couldn’t sit on that case; the district judge’s decision turned on his assessment of the witness’s testimony. On the other occasion I declined to recuse myself. The basis of the recusal motion was an affidavit I had written before I became a judge, in a matter that had some resemblance to the case but not close enough—I thought—to warrant my recusing myself. I think the movant asked the full court to force me off the case, but the full court declined. So no, no one has ever asked me to recuse myself on the basis of my academic writing or my writing for the media.
JC: You recognize that the government is extremely loath to seek recusal of a judge because there are often serious consequences, at least in the case of many of your colleagues around the country. Judges often take recusal motions badly—there’s a price to be paid by a litigant for seeking to recuse a judge. Perhaps in the case where the judge denies the motion. And, more generally, where the judge has a long memory about the litigant who sought their recusal in a prior case. Don’t you think the government might be concerned enough about that to not seek your recusal?
RAP: I don’t have a reputation for being vengeful, do I?
JC: I’m not suggesting that. I’m suggesting if I were a litigant before you and you had written articles containing, shall I say, some vitriol about a position that I might want to articulate in your courtroom, I might want to get you off the case. It would be easier for me if I were rarely before your court. It seems to me when you write, as you do so frequently, it could raise an issue that might concern litigants. Whether they make a recusal motion or not, they might wonder if they’ll get a fair shake before a judge with so many, many opinions as you have.
RAP: The fallacy, I think, in what you’re saying is the concept of the fair shake. I don’t think people have the right to a tabula rasa—some total ignoramus who’s never thought about any of the issues. And if you’ve thought about them, you have opinions. Why shouldn’t you express them? You have to be ready to change them obviously. But you give people useful infor-mation by telling them what you think.
JC: Do you often change your opinions based on a case that’s presented to you?
RAP: I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I’ve become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the “rational choice” model of economic behavior. So my views have changed a lot. You don’t want a judge who takes a position and feels committed to it because he thinks it’s terrible to change one’s mind.
JC: When you decide to write, for example, these “letters” to Dahlia Lithwick and [former Acting Solicitor General] Walter Dellinger published in Slate regarding the Supreme Court roundup at the end of the term, you’re not writing for a legal audience. You’re writing for a broader audience. Why do you write those? What is your goal?
RAP: The reason I agreed to write them was that it would force me to read more Supreme Court opinions carefully.
JC: You wouldn’t have read the opinions carefully if you weren’t writing a piece for Slate? I suggest, if you don’t mind, you’re not completely self-aware here.
RAP: I read the Supreme Court opinions that bear directly on cases I have. I don’t read the others. They are often tedious, and anyway I find it difficult to get much out of opinions that are not directly relevant to something I’m thinking about. So I thought it would be good for me to read opinions that weren’t germane to any case I had—that it would give me a better sense of what’s going on in the Supreme Court.
JC: But I suspect that the Chicago Law Review, the Yale Law Journal or the Harvard Law Review would gladly publish your writings about such opinions. Yet you write it for a different audience, Slate, because it would force you to read opinions more carefully than if you were writing for a top-quality law review? Basically, then, you can take some liberties with Slate that you can’t with the Harvard Law Review?
RAP: Well, sure. If you write for a nonprofessional audience you don’t go into details that aren’t of interest to them.
JC: I’m positing here—though maybe not so articulately—that you prefer to write for a real-world audience, rather than for a legal audience, in the sense that you want to maybe tell the world something it doesn’t know, that lawyers who read legal publications probably already do know.
RAP: I wouldn’t put it that way. My most recent book, Reflections on Judging, is addressed to a legal audience rather than to a general audience. Another book I wrote that was published last year, The Behavior of Federal Judges, co-authored with an economist and a political scientist, was intended strictly for a professional audience—not limited to lawyers but definitely not for popular consumption.
JC: Other than talking about pending or impending cases, where do you draw the line for yourself in terms of what you feel you can’t write or speak about?
RAP: I don’t want to create ill feelings. I don’t want to say things publicly that are going to get me in trouble with my colleagues or create misleading impressions.
JC: I see, that’s where you draw the line. But you’re not drawing the line because you think there’s something ethically inappropriate about it?
RAP: I do think at some point a judge’s out-of-court public comments become ethically improper. There are genuine confidences one has to respect. But I don’t see any problem with writing a book or an article that doesn’t stir up scandal or make accusations, that is dispassionate and responsible.
JC: You somewhat famously “pleaded guilty” to having authored the voter ID case, Crawford v. Marion County Election Board, that ultimately went to the Supreme Court. You authored an opinion holding the voter ID law in Indiana constitutional, and the Supreme Court then affirmed. Later, you “pleaded guilty” and it was basically reported that you had done a mea culpa over your decision. However, you took the position that “No, I was not making a mea culpa. I was just saying I was pleading guilty to having authored the opinion.” Am I correct?
RAP: No, what I said I pleaded guilty to was not having come out the wrong way in that case. In Reflections on Judging, where the mea culpa appeared, I was complaining about judges not knowing enough. I was pleading guilty to not having in-depth knowledge of the problem of disenfranchisement created by voter ID laws. What we (the judges on the panel assigned to the appeal) were presented with was the opponents of the Indiana voter ID law saying that having to produce a photograph of yourself, either a driver’s license or a photo from the local government office, at the polls would discourage people—especially those without a car—from voting. So, they argued, this is a scheme to disenfranchise the poor people, presumably mostly Democrats. The argument on the other side was that there is a problem of voter fraud. You have people impersonating the registered voter and the election officials can’t do anything about it because there’s no requirement that the voter produce a photo ID. We weren’t given any information about the incidence of fraud or the incidence of deliberate disenfranchisement. We were just given arguments. And I said in the opinion that we didn’t want to get into this. We didn’t want to micromanage election rules.
What has happened since is that more evidence has emerged that these voter ID laws are intended to disenfranchise Democrats. That evidence either didn’t exist when Crawford came before us or the lawyers didn’t present it to us. I should have done more looking, but I’m not sure the evidence actually existed at the time.
There have been cases where judges have said, usually after they’ve retired, that they are sorry they voted a particular way in a particular case. The late Justice Lewis Powell said that about Bowers v. Hardwick, the Georgia sodomy case, later overruled, which held that homosexual sodomy is not constitutionally protected activity, even between consenting adults. I’d say that for me, for everybody in the judiciary, there’s probably a high error rate. The law is often unclear, the facts typically underdeveloped. I’m sure I’ve voted erroneously in an unknown number of the 6,000 cases that I’ve heard argument in. I don’t think a judge should spend his time grading himself on the cases that he voted on many years ago.
JC: So do you think you got it wrong in Crawford?
RAP: I don’t know because I don’t know what the evidence was that was available then. If there was no evidence available—it was just guesswork or just a hunch, just the two major parties clashing over this for partisan reasons—then I think we were right. When in doubt, it doesn’t make sense to create a whole new head of federal jurisdiction requiring minute supervision of local election officials. If there was a lot of evidence that the voter ID law was disenfranchising honest voters rather than preventing fraud, and I just missed that evidence, then probably I was wrong.
JC: So supposing you have a case such as Crawford, where you write the decision, and a few months or even years later you decide you got it wrong.
RAP: That’s unlikely to happen. Part of the psychology of judging is that you don’t look back. In Crawford one has dramatic subsequent evidence of the apparently abusive character of these voter ID laws. As it happened, I was writing a book (Reflections on Judging) that was in large part about how judges are handicapped by not knowing enough. So this was a good example. But generally you don’t look back.
JC: You’re saying that in 32 years you haven’t looked back and said, “Gee whiz, I got that one wrong”?
RAP: I’ve written almost 3,000 opinions. I don’t remember most of them, obviously. The ones I do remember, I like. I’m sure that if I did a careful study I’d find decisions that I now think wrong. I’ve been reversed by the Supreme Court on occasion, and I imagine that if I reread my opinions in those cases I would at least sometimes, and maybe often, think the Supreme Court had been correct. But I have better things to do with my time than brood about my 3,000 opinions.
JC: What if you wake up in the middle of the night and decide that two years ago you got it wrong?
RAP: I have never woken up in the middle of the night thinking about a judicial decision! And as I said, part of the psychology of being a judge is that you don’t look back on your decisions. Sometimes I come across, in doing research, an old case of mine that bears on it, and sometimes I’m taken a little aback by the tone or something else in it, but I’m not really interested in whether a decision I wrote 20 years ago is correct or corresponds to what I think now.
JC: Is there any danger in a judge, whether he or she is as prolific as are you in writing about public issues, is there some risk in it somehow impacting their judging?
RAP: Yes, there is a risk. I don’t think it’s acute for me because I don’t feel that strongly committed to most positions. I can’t imagine worrying in judging a case that what I’m saying in my opinion is inconsistent with something I wrote in a nonjudicial setting.
JC: Do you ever look back on any of that when a case comes before you?
RAP: No, I don’t think I’ve ever done that. Once or twice in my 32 years as a judge I’ve cited a book or article that I co-authored, but I’ve never cited my academic writings other than in those few cases. Of course I came to the bench with some previously held beliefs reflected in my academic writings, beliefs that it would be natural for any judge to recall and occasionally be influenced by.
JC: In a “Supreme Court Year in Review” piece in Slate you raise the question of whether it is bad for a Supreme Court justice to be outspoken. You write: “Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be?” You ask the question but don’t answer it. Do you think it’s bad for a Supreme Court justice or a circuit justice to be outspoken?
RAP: I think from a public relations standpoint it would better for the Supreme Court justices to take a lower profile—talk less on the bench and participate less in mock trials and other celebrity-type activities.
JC: [The final question and answer were done via email after the interview.] Finally, now having reviewed the transcript of this interview, do you think you were guarded in your answers—recognizing, as I do, that the issue of self-awareness necessarily has to be off the table given the frailty of man in perhaps being able to recognize his own shortcoming in this area?
RAP: Yes, of course. A public official is always more guarded—or should be—when communicating with the public.
This article originally appeared in the July 2014 issue of the ABA Journal with this headline: “An Interview with Judge Richard A. Posner: Do one’s ‘real world’ activities—writing, theorizing, blogging—negatively impact one’s judging?”
A former prosecutor, Joel Cohen is currently of counsel at Stroock & Stroock & Lavan in New York City. Cohen writes and lectures on criminal law, ethics and social policy. His new book, Blindfolds Off: Judges on How They Decide, is scheduled for release by ABA Publishing in July.
A former prosecutor, Joel Cohen is currently of counsel at Stroock & Stroock & Lavan in New York City. Cohen writes and lectures on criminal law, ethics and social policy. His new book, Blindfolds Off: Judges on How They Decide, is scheduled for release by ABA Publishing in July.