David R. Henderson  

Restless Judge Posner

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Probably the best-known current federal judge who is not a Supreme Court justice is Richard Posner. He has been a judge on the 7th Circuit since 1981. Posner is known for his judicial decisions, his crystal-clear writing style in those decisions, and his prodigious output: over 40 books and hundreds of articles in law reviews, economics journals, and popular publications.

Given his importance in both academia and the federal courts, we have been due for a book that tells us more about the man. In most of the important ways, William Domnarski's Richard Posner is that book.


This is the opening paragraph from "The Restless Judge," my review of the book.

Another excerpt:

We see Posner call out various judges for intellectual laziness. He tangles with the late Supreme Court Justice and his former University of Chicago colleague, Antonin Scalia. He acerbically dresses down some police officers who have violated a defendant's Miranda rights. He confidently reaches conclusions about public policy based on his largely self-taught economic understanding.

Posner on Scalia
Posner is a harsh critic of federal judges, arguing that many of them are lazy and that they should write their own decisions rather than have their clerks write them. Two famous judges whom he takes on are current Chief Justice John Roberts and the late Justice Antonin Scalia. In a 2012 article in Slate, after Scalia had dissented from parts of the majority opinion that invalidated some provisions of an Arizona law on immigration, Posner raked Scalia over the coals. Scalia had written, "[Arizona's] citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." Wrote Posner, "But the suggestion that illegal immigrants in Arizona are invading Americans' property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it." Aside from his question-begging use of "hyperbole"--if it were hyperbole, one would be hard put to find a "reputable source" to support it--Posner made a good point.

Posner on Miranda Warning and Cops
In my view, Posner was at his finest in his 2014 United States v. Slaight opinion reversing the conviction of Michael Slaight for receipt and possession of child pornography. The police had clearly denied Slaight his Miranda warning, and Posner saw through it. Dismissing the police argument that they wanted to interview Slaight at the police station rather than at his home because his windows were covered with trash bags, blocking the sunlight, Posner wrote sardonically that "the officers gave no reason why an interview, unlike painting a landscape, requires natural rather than artificial light." As to their argument that the house "had a strong smell of cats," Posner, who to his credit is pro-cat throughout the book, wrote that "police smell much worse things in the line of duty." The final two sentences of Posner's decision are terse and beautiful: "These facts are incontrovertible and show that the average person in Slaight's position would have thought himself in custody. Any other conclusion would leave Miranda in tatters."

I do end, however, by pointing out that Posner seems to have undue confidence in the willingness of powerful government officials to do the right thing even when they have little incentive to do so.


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CATEGORIES: Law and Economics




COMMENTS (7 to date)
Khodge writes:

"...Willingness of powerful government officials to do the right thing."
It is a given in public accounting that if someone can get away with something, they will. Hence, accounting regulations are about controls.

James writes:

Posner's reading of Scalia seems careless. Scalia wrote "Arizona's citizens feel themselves under seige..." and Posner criticizes Scalis for not providing evidence that Americans actually are under seige.

Two problems: Scalia did not himself make the claim that Posner reads. Also, even if Scalia were claiming that Americans are under seige, Posner's assertion that this particular claim is inflammatory enough to require a footnote is just Posner's opinion, not an actual critique of Scalia's reasoning. In other words, a man who calls out others for laziness is raising a rhetorical eyebrow as though it were a reasoned rebuttal.

One item not mentioned in the review article is Posner's pragmatism. To his credit, Posner rejects the Rortian flavor of pragmatism which he refers to as "recusant" in Law, Pragmatism and Democracy. However, Posner has written elsewhere that justices should focus on "what works" (whatever that means) rather than thinking about any "chain of logical links to an indisputably authoritative source of law, such as the text of the United States Constitution." Never mind that the authority of Federal judges is a product of the Constitution, if judges need only concern themselves with "what works," then what the law is depends entirely on what ends the people currently serving as judges think the law should work toward.


A writes:

James, if you read Scalia's claim in context, he seems to hold the views that he expresses in a "people say" format: http://s3.documentcloud.org/documents/372493/scalia-statement.txt

He supports Arizona's actions as a defense of sovereignty, not of the feelings of its residents.

Greg writes:

Posner also wrote a long article in support of Keynesianism and Obama's stimulus legislation. His writing was clear, but his analysis was intellectually dishonest and lazy.

MikeP writes:

Posner's reading of Scalia seems careless. Scalia wrote "Arizona's citizens feel themselves under seige..." and Posner criticizes Scalis for not providing evidence that Americans actually are under seige.

I have to disagree. While two of Arizona's citizens feeling themselves under siege makes Scalia's statement literally true, it is not relevant in any way unless a significant number of Arizona's citizens feel themselves under siege. So such a claim deserves some support that there actually are a significant number who feel that way.

As an aside, Arizona is something of a pathological case. It has a problem with immigration, but that problem is immigrants from other US states. Last I checked, Arizona was the only state where a majority of residents were born out of state. Unfortunately for longtime residents of Arizona, these immigrants are immediately entitled to vote. The horrendous legislation we see coming out of Phoenix is the result.

Phil writes:

MikeP - apparently you have a problem with the privileges and immunities clause of the Constitution (Art. IV, Section 2, clause 1).

Question: Just how long must someone who moves to Arizona wait before they have rights? Do their responsibilities have a similar waiting period?

MikeP writes:

Just how long must someone who moves to Arizona wait before they have rights?

Ooh. I like trick questions.

If we're talking about unalienable individual rights, someone who moves to Arizona of course has them immediately -- just as they had them before they moved to Arizona.

If we're talking about the legal right to vote, someone must wait 18 years if they were born in Arizona, some number of years if they are convicted felons, perhaps never if they move to Arizona from another country and aren't on a citizenship track visa. Oh, and they can exercise this legal right only on very occasional Tuesdays designated by the state.

apparently you have a problem with the privileges and immunities clause of the Constitution

Actually, I have a problem with people voting to abrogate other people's unalienable individual rights.

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