The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Richard Posner, who unexpectedly announced his retirement on Friday, is the most influential lower court judge of the last several decades. He is also perhaps the greatest legal scholar of his era. Among other things, he is one of the founding pioneers of law and economics. I doubt we will soon see another titan who stands so high in both the judicial and academic worlds simultaneously. Indeed, we may never do so. The increasing specialization of the legal profession makes it almost impossible for anyone to repeat Posner's extraordinary feat.
In a statement announcing his retirement, Judge Posner writes that he is "proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case." I fully share Judge Posner's view that judicial opinions should, as much as possible, be "easy to understand." On the other hand, I am more skeptical of his pragmatic approach to judicial decision-making. In this 2004 review of Posner's important book Law, Pragmatism, and Democracy, I outlined some of my reservations. Here is a part of the abstract:
Judge Richard Posner's recent book, "Law, Pragmatism, and Democracy," is a major contribution to the ongoing debate over the best conception of democracy and the role of judicial review within it.
Posner urges that political and legal decision-makers should be guided by what he calls everyday pragmatism rather than worry about abstract moral considerations… He links this conception of pragmatic government to an unromantic theory of democracy that rejects more demanding and idealistic views currently embraced by many political theorists and legal scholars…. He further argues that judicial review should be based on a combination of pragmatism and adherence to his limited conception of democracy, rather than sticking closely to formalist theories of adjudication, which demand strict adherence to the text of the Constitution, legal precedent, or the original intent of the framers….
Judge Posner makes a large number of powerful points and his critiques of opposing views are often devastating. Unfortunately, he is less persuasive in defending the central theses of this book…. Posner's version of pragmatism is both too narrow and too broad. Its excessive narrowness resides in Posner's failure to come to grips with the fact that the pragmatic soundness of an action cannot be assessed without a prior determination of whether the results it accomplishes are normatively desirable. This latter judgment cannot itself be a purely pragmatic one, but requires some sort of normative theory of ends. On the other hand, Posnerian pragmatism is also too broad because it is not clear what if any considerations can be excluded from its scope. A theory that incorporates everything ultimately proves nothing.
Posner's model of democracy likewise suffers from important deficiencies…..
Finally, Posner's argument that judicial decision-making should be based on his theories of pragmatism and democracy suffers from the limitations of those theories themselves. It also has additional shortcomings of its own, including the likely inability of judges to implement those theories. As Posner himself partially acknowledges, judges may often serve democracy better by staying within the bounds of formalism.
In a 2015 post, I criticized Judge Posner's pragmatic rationale for changing his mind on the constitutionality of laws banning same-sex marriage. Although I believe Posner was right to change his mind, I found his justification for the shift problematic, because it relied on the significance of shifting public opinion:
Posner's argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed. In 1997, as Posner put it in his earlier article, "[a]n overwhelming majority of the American people [were] strongly opposed to" same-sex marriage. But if this is a justification for refusing to strike down an otherwise unconstitutional law, it turns on its head the notion that one of the main functions of judicial review is precisely to protect individual rights against majority public opinion. Under Posner's approach, judicial enforcement of constitutional rights would only occur when it is least needed—when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise.
While I differ with Posner on many questions of constitutional theory, there is no doubt that he has made important contributions to this field. On numerous other issues, I not only admire Posner's work, but also think he was right to question the then-dominant conventional wisdom. This is most true of his path-breaking scholarship on law and economics. I also am a fan of his analysis of the rise and fall of judicial deference.
And I wholeheartedly support his advocacy of abolishing the Bluebook—the hypercomplicated citation system used by most law reviews:
"The first thing to do," Posner writes, "is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook."
In general, I am strongly opposed to book burning of any kind. But in this case, I can only say, burn, baby, burn! Like Posner, I have long argued that the Bluebook and its hundreds of pages of useless, time-wasting rules should be abolished and replaced with a much simpler citation system…
While Judge Posner is leaving the judiciary, he plans to continue his academic work and contributions to public debate. The rest of us will continue to benefit from his many insights. In time, perhaps he will even finally persuade law journal editors to see the light and burn the Bluebook!