The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this month, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit announced his retirement from the federal bench. One of the most prolific and outspoken members of the federal judiciary—both in his opinions, academic writings and public remarks—Posner had a profound impact on the law and the broader debate about the role of judges in our legal system.
The New York Times has just published "An Exit Interview with Richard Posner, Judicial Provocateur" by Adam Liptak, in which Posner demonstrates the qualities that have made him one of the most watched—if not necessarily the most beloved—members of the federal bench. Among other things, Posner described his approach to the law as follows:
"I pay very little attention to legal rules, statutes, constitutional provisions," Judge Posner said. "A case is just a dispute. The first thing you do is ask yourself - forget about the law - what is a sensible resolution of this dispute?"
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. "And the answer is that's actually rarely the case," he said. "When you have a Supreme Court case or something similar, they're often extremely easy to get around."
As Liptak notes, Posner's approach to the law often drew substantial criticism. To some, focusing on the desired outcome before consulting the relevant legal authorities might seem to be the epitome of lawless judging or judicial activism. To Posner, this is simply a "pragmatic" approach to resolving cases.
Asked about his critics, Posner described two camps of critics, those with a "sincere" belief in a more "formalist" conception of the law and those who are just "reactionary beasts" who, in Posner's words, "want to manipulate the statutes and the Constitution in their own way."
One of those who Posner might characterize as a "reactionary beast," Ed Whelan, comments on Posner's interview at NRO's Bench Memos. Whelan, for his part, notes he has "steadfastly advocated formalism and who offered a formalist critique of Posner's pragmatism well before Posner's sharp turn to the Left" and is therefore "happy to be on the right side" of the line between sincere critic and "reactionary beast." Whelan is a former clerk to the late Justice Antonin Scalia, and the co-editor of a forthcoming book of Scalia's speeches. Scalia was a frequent target of Posner's.
The "exit interview" is vintage Posner in many ways. For those interested in the law and the federal judiciary, it is definitely worth a read.
[Note: I slightly revised and expanded the penultimate paragraph after publication.]