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Judge Thapar Reviews Judge Posner

One of several worthwhile reads in this year's Michigan Law Review book review issue.

The Michigan Law Review's annual book review issue is out, and it contains quite a bit of good stuff.

Among the highlights of this year's issue is a review of Richard Posner's book, The Federal Judiciary: Strengths and Weaknesses, by the Honorable Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit and attorney Benjamin Beaton. The whole thing is worth a read, but here is how the review begins (footnotes omitted):

Just when you thought Richard Posner couldn't write any faster, he managed to squeeze two books into one. The final publication of his judicial career, The Federal Judiciary: Strengths and Weaknesses, is a fitting valedictory for America's most prolific judge. It features a robust procedural critique of the operations of the federal courts, alongside an impassioned substantive call for his colleagues to adopt Posner's brand of judicial pragmatism. Those two theses, however, are hopelessly at war with each other: the case-by-case interpretive pragmatism Posner advocates would directly undermine the systemwide pragmatism he claims to prioritize in the courts' operations.

In assessing federal judges' strengths and weaknesses, Posner finds much to critique. His assessments are incendiary, profound, and trivial—often all on the same page. Readers should arrive with an appetite: a single paragraph on page 21, for example, covers the courts' reliance on multifactor tests and canons of construction, lack of candor, verbosity, jargon, pretense of objectivity, inadequate caseload, inadequate argument time, inadequate schedule, and use of the dreaded Bluebook.

Many of these staccato objections echo portions of Posner's past works. This particular book's most sustained and relevant criticism is that the bench and bar are too rigid and reactionary: backward-looking "formalism," focused on dusty precedents and historical meaning, often masks judges' true reasoning. By elevating form over substance, Posner suspects, advocates and judges apply a veneer of objectivity to half-baked arguments, political preferences, and outcome-oriented decisions.

This first thesis, criticizing legal rigidity, contains a grain of truth. Lawyers and judges can be a stodgy bunch. And that can make the law less accessible and less sensible. Posner highlights many aspects of our system—from the courts' pace to the caselaw's complexity—that could improve with a less formulaic and more plainspoken approach. When briefs and opinions elevate form over substance, they can obscure the governing legal principles and diminish the utility of the judicial process as a whole.

But Posner's second major thesis, advocating consequentialist interpretation, is a strange response to this problem. Posner complains that formalist judges are using interpretive tools to achieve outcomes they like. His solution? Replace the formalism that he believes is backward-looking with an aggressive substantive pragmatism that eschews traditional limits of judicial restraint and democratic accountability. But if the problem is masking outcome-driven decisions with legalese, isn't the solution more transparency, sounder reasoning, and greater objectivity? Not according to Posner. Instead of binding policy-driven judges to the rule of law, Posner would liberate them to do justice as they see fit—at least when they can avoid any textual or precedential barriers "by hook or by crook."

Setting aside problems of popular consent and separation of powers, Posner's version of pragmatic case-by-case judging, when considered in the aggregate, fails even on his own pragmatic terms. Litigants, lawyers, and judges depend on the stability and ascertainability of the law. Yet without an advance commitment to basic interpretive principles (those formal legal texts, precedents, and rules of interpretation this book disparages), who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law? Everything is up for grabs when judges opt "not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem[s]" before them.

This view of the judge's role is fundamentally at odds with our experience litigating and deciding cases in the federal courts. Equally important, "pragmatic" interpretation unleashes great unpredictability outside the courtroom: it becomes hard to advise clients, arrange legal relationships, and plan everyday conduct.

Posner's substitution of forward-looking pragmatism for backwardlooking (which is to say, ordinary) tools of legal interpretation, therefore, would only exacerbate the operational shortcomings he critiques. And vice versa: his operational critiques—though often valid—have little to do with his substantive critique of legal formalism. From our perspectives in and among the federal judiciary, Judge Posner's cure would only worsen the disease.

Read the whole thing.

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  • Tall Paul||

    Posner's jurisprudence can be summed up in four words: "I am the law."

  • MonitorsMost||

    The divine right of those adviced and consented to.

  • NToJ||

    Do you have a particular opinion in mind?

    I haven't read the latest book. I have read some of his older stuff on pragmatism, and the critiques are generally overstated, in my view. Posner is a normal, typical judge who interprets contracts and statutes as written. Pragmatism, as a theory of jurisprudence, only comes into play when the statute or contract isn't clear. It's much narrower than just "I am the law" in any case. I'm not aware of Posner declaring that a federal statute says X but he's going to go with Y because it's more pragmatic.

    Re: Judge Thapar's criticism of pragmatism being unbounded, it sounds very similar to Judge Wilkinson's similar criticism from Cosmic Constitutional Theory. And equally persuasive.

  • Brett Bellmore||

    "Pragmatism, as a theory of jurisprudence, only comes into play when the statute or contract isn't clear. "

    The basic problem here is that when your idea of proper judging says, "Follow the law when it is clear, do whatever you feel like when it's unclear.", the law suddenly becomes incredibly opaque.

    Because people like being empowered to do whatever they feel like. And there's nothing easier for human beings than finding it hard to understand things when understanding them has negative consequences.

  • NToJ||

    "...the law suddenly becomes incredibly opaque."

    Do you have a particular Posner opinion in mind? There are countless boring, unanimous opinions on mundane issues of statutory construction in which the law is hardly opaque. And I doubt you believe Congress is some paragon of clarity when it speaks.

    "Because people like being empowered to do whatever they feel like."

    Yes, human beings like liberty. That's one advantage of pragmatism; it encourages judges to think about human liberty as an end when rendering decisions in close cases. (I'm not a fan of pragmatism.)

  • LawDog||

    Hively comes immediately to mind. lt was the outcome l would have preferred personally, but "rewriting the law to comport with my personal view of justice" is WAY outside the legitimate bounds of the Article lll power.

  • NToJ||

    He didn't write the actual opinion, his reasoning is a bit more nuanced than "comport[s] with my personal view of justice", and it's by far a more honest statement of what was actually happening in Hively than the opinion's misinterpretation of Title VII.

  • LawDog||

    He wrote a concurrence, where he fessed up.

  • NToJ||

    So where did he say he was going to "rewrit[e] the law to comport with [his] personal view of justice"? Stop using quotes if you're the one speaking.

  • LawDog||

    And that is different from the jurisprudence of any other federal judge exactly how???

  • ReaderY||

    If one wants to see what life might be like under this philosophy, and what a person who eschews precedents, restraints, formal structure, democratic accountability, and whatever he promised yesterday in the pragmatic pursuit of today's goals might do and how such a person might behave, look no further than the current occupant of the White House.

    If one knows one is a great man, precedents, restraints, structures, democratic accountability, promises, consistency, rights, other peoples' well-being - these are just things for the little people to concern themselves with, not the Great.

  • Brett Bellmore||

    You mean the current occupant of the White House, who promptly complies with every court injunction even while he complains about them? In decided contrast to the previous occupant, who ended up in contempt of court for ignoring an injunction he didn't like?

  • NToJ||

    Posner follows precedents.

  • LawDog||

    ...unless he can figure out a way around them, which is basically always.

  • NToJ||

    Will you admit that "basically always" is wrong if I present more than a few Posner cases following precedent? If you will, I'll go find them.

  • Drewski||

    Boy, I sure am glad I didn't grow up named "Benjamin Beaton".

  • LawDog||

    The only real difference between Richard Posner and the other ~1,000 federal judges out there is that he is honest. Judges are sociopaths, who pledge public fealty to the rule of law while imposing their own provincial views of justice; Posner merely reveals the secrets of freemasonry.

    As a rule, judges only follow precedent when it takes them where they wanted to go in the first place. Posner confessed that appellate judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as rewriting it to comport with their personal preferences—"constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent"—a process colorfully characterized as "fig-leafing." Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008). Professor Llewellyn adds that, whenever a judge wants an outcome badly enough, s/he will "lie to get it." Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960).

    Concurrences read like a Brandeis brief./2

  • LawDog||

    2/Scalia (per Thapar): "[T]he main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law." And the odds of this happening in a case a judge cares about are approximately 100%.

    Kagan called this "the problem of Platonic Guardians." But the real problem is that judges have "interpreted" any and all constitutional controls on their power out of existence. The judicial sinecure was granted on a condition of "good Behaviour," which was well-defined in English law. But knowing that the judges' SCOTUStitution bears only a passing resemblance to the Framers' COTUS, "Scalia quipped, "What can they do to me?" Scalia joked of life on the Supreme Court. "It's even better than academic tenure, I get life tenure!""

    Brutus tried to warn us. So did Jefferson. But we live in a judocratic dictatorship, and bench and bar has quietly acquiesced.

  • Sarcastr0||

    we live in a judocratic dictatorship

    He posts freely on the Internet without fear of reprisal.

    I do love posts like this even a bit more than the 'all taxes are robbery' guys.

  • LawDog||

    S: "He posts freely on the Internet without fear of reprisal."

    Reprisal ... from whom? Does the judiciary have its own Gestapo? SS? Do tell!

    A larger question: Why do you discount the words of such luminaries as Posner, Bork, Kagan, and Jefferson?

    The short history of American jurisprudence is judges, grasping for power. The overpowering role of the modern federal judiciary would have surprised Hamilton and mortified Jefferson; in later letters, he repeatedly warned recipients of the storm that was to come. "The constitution … is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." Thomas Jefferson, Letter (to Spencer Roane), Sept. 6, 1819 at 1.

    More to the point, our imperious judiciary has written a "constitution" no sentient human being would ever voluntarily consent to. It declares -- with scarcely even a whiff of subtlety -- that the former Republic once known as the United States of America is a regime, governed by a "judicial oligarchy," Robert H. Bork, Our Judicial Oligarchy, First Things 67 (Nov. 1996) at 21, brought about by what he accurately described as a "judicial coup d'êtat." Bork, Coercing Virtue: The Worldwide Rule of Judges (New York: AEI Press, 2003), at 13.

    You're not disagreeing with me, so much as the experts l cite.

  • NToJ||

    Your hyperbole is unnecessary. Judges have to at least pretend to follow statutes or constitutions, and so if democracies want to reign them in, you just... reign them in. There's a post above this about Kelo. Other examples would be RFRAs. Congress doesn't have to wait for the judiciary to do away with Chevron deference.

  • LawDog||

    l don't think that the "hyperbolic" remarks of such sober commentators as George Will, Robert Bork, and Jefferson himself understate the case. As the late, Professor Monroe Freedman, who was one of the nation's leading scholars on judicial ethics, observes:

    Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

    The system was designed to catch these problems. and before The Judges' Bill, it generally did. But as evidenced grotesquely in Hively, judges scarcely even pretend to color inside the lines. lt has gotten to the point where the U.S. Reports isn't even a polite suggestion.

  • NToJ||

    You don't think George Will, Robert Bork, and Thomas Jefferson succumbed to hyperbole? Ok, nice conversation.

  • LawDog||

    Evaluate their statements on the merits. Bork:

    The illegitimacy of the Court's departures from the Constitution is underscored by the fact that no Justice has ever attempted a justification of the practice. At most, opinions have offered, as if it solved something, the observation that the Court has never felt its power confined to the intended meaning of the Constitution. True enough, but a long habit of abuse of authority does not make the abuse legitimate. That is particularly so when the representative branches of government have no effective way of resisting the Court's depredations. Viewing the carnage created by the Court, George Will referred to the Justices as "our robed masters." When the VMI decision came down, my wife said the Justices were behaving like a "band of outlaws."

    Neither of those appellations is in the least bit extreme. The Justices are our masters in a way that no President, Congressman, governor, or other elected official is. They order our lives and we have no recourse, no means of resisting, no means of altering their ukases. They are indeed robed masters. But "band of outlaws"? An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done.

    Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996).

  • NToJ||

    I agree with you that Robert Bork is being hyperbolic when he said that "Justices are our masters in a way taht no President, Congressman, governor, or other elected official is."

  • David Nieporent||

    He posts freely on the Internet without fear of reprisal.

    Not worth arguing with him. It's like arguing with the gold-fringed flag admiralty people. He's literally a kook; he couldn't get admitted to the bar because they wanted his mental health evaluated and he wouldn't comply, claiming it was a conspiracy. He then spent the next ten years or so serially suing every single judge who ruled against him. Eventually, he was barred from filing suits as a vexatious litigant, so he switched jurisdictions and kept doing it until he was barred there, too. (The fact that he obliquely threatened to shoot judges probably didn't help.) Rather than concluding that his ideas about the law were wrong, he decided that the entire judiciary was corrupt. One of his brainstorms was to claim that there was a private right to impeach federal judges (i.e., without needing Congressional action). You will not be surprised to hear that judges did not accept that one, either.

  • Sarcastr0||

    Now I feel bad that I was poking fun at the mentally ill.

  • David Nieporent||

    (For the record, and contrary to his comment below that I'm "following" him: I first encountered him back in the days of Usenet on misc.legal in the early 2000s. I had mostly forgotten about him, but his ranting about specific Colorado judges rang a bell, and a quick google refreshed my memory. It's not hard to figure out who he is even though he has posted under varying handles over the years, because he cites the exact same out-of-context quotes, from cases and commentary, from year to year.)

  • LawDog||

    Hypocrite.

  • LawDog||

    DN: "He's literally a kook"

    Ad hominem. Poisoning the well. David and logic mix like oil and water.

    DN: "he couldn't get admitted to the bar because they wanted his mental health evaluated and he wouldn't comply"

    "Vague laws invite arbitrary power." stated Justice Gorsuch in his concurring opinion in Sessions v. Dimaya. Shades of Terminiello v. City of Chicago, 337 U.S. 1 (1949). A standard too vague to be defined is too vague to be constitutional.

    DN: "claiming it was a conspiracy."

    He's not too good with facts, either.

  • LawDog||

    DN: "One of his brainstorms was to claim that there was a private right to impeach federal judges"

    See https://www.jstor.org/stable/795270. A legendary Harvard professor, writing in the Yale LJ. Must be spurious.

  • David Nieporent||

    Professor Llewellyn adds that, whenever a judge wants an outcome badly enough, s/he will "lie to get it." Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960).

    See, it's dishonesty like that that gets one barred from filing lawsuits.

  • LawDog||

    DN: "See, it's dishonesty like that that gets one barred from filing lawsuits."

    Awwwww. David follows me around like a widdle wost puppy.

    This is how our arguments usually go:

    Me: Controversial position. Citations/quotations.

    DN: "YOU LlE!!!!"

    Me: Check my work. Here, https://books.google.com.jm/books?id=sMozDAAAQBAJ&

    printsec=frontcover&

    dq=llewellyn+common+law&hl=en&sa=X&ved=0ahUKE

    wiCs9XDr8TaAhVSuVMKHfQdAbEQ6AEIJTAA

    #v=snippet&q="lie to get"&f=false (had to break link up; 2016 reprint).

    Me: and here are some concurrences: Llewellyn writes that judges routinely "manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach." Llewellyn, The Common Law Tradition at 133 (1960); accord, e.g., Richard A. Posner, How Judges Think 144 (Harv. U. Press 2008); Alan Dershowitz, Letters To a Young Lawyer 11 (Basic Books 2001).

    DN shrieks: "YOU'RE CRAZY!"

    Lather. Rinse. Repeat.

  • David Nieporent||

    Llewellyn writes that judges routinely

    There you go again. He did no such thing.

  • LawDog||

    You can debate the frequency with Dershowitz:

    "[My point is] about the disillusionment that comes with learning that some justices actually cheat. You probably already suspected that some lower court judges play favorites with lawyers and litigants who supported their election or appointment. But Supreme Court justices? That came as a surprise even to a lifelong cynic like me. …

    Trust no one in power, including—especially—judges. Don't take judicial opinions at face value. Go back and read the transcript. Cite-check the cases, You will be amazed at how often you will find judges "finessing" the facts and the law.

    Llwewllyn also observed that judges "manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach." Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.

    As a low-rent mechanic in a legal Jiffy Lube, you wouldn't see it often.

  • NToJ||

    Where is the quotation "lie to get" coming from?

  • LawDog||

    The book l cited. "Such action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it."

    Dershowitz adds:

    "It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, "I don't care if my opponent knows the law, as long as I know the judge." In the old days, it was financial corruption -- cash changed hands. Then it became the "favor bank," in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere."

    How often does it happen? Way too much.

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