The Mystery of Richard Posner

The following is a condensed version of "The Mystery of Richard Posner" by Corbin K. Barthold, published at Law & Liberty. 

A law professor, public intellectual, and federal appellate judge, Richard Posner was a giant. He wrote some sixty books, on topics ranging from sex to asteroid strikes. He issued more than 3,000 judicial decisions. He gave shape to the law and economics movement. He is the most cited legal scholar of all time. Meanwhile, he somehow found the time to blog, lecture, and sit as a trial judge.

His career has come to an end. Posner departed the judiciary in 2017. Last year, it was revealed that he has been diagnosed with Alzheimer’s.

For much of his life, and on most issues, Posner was a man of the right. He wanted to free the markets and fetter the criminals. He was kicking holes in critical race theory long before it escaped the universities. He was a proponent of a restrained judiciary. Yet he was also subversive, eccentric, and intellectually prickly. He had no time for tradition, and he was a dogged critic of textualism, originalism, and legal formalism writ large. A vocal moral skeptic, he was that rare creature, a conservative postmodernist.

“The market,” Posner once opined, “like the jungle to which it is sometimes compared, is pitiless.” He meant it as a compliment. When sitting on the bench, he didn’t want to hear sanctimonious preaching about rights; he wanted to hear practical talk about effects. What ruling will best allocate society’s resources?

In his heyday he was a dry-eyed adjudicator. It is not “the business of the courts,” Posner grumbled, to “spread good feeling.” He was a hanging judge. “Inadequate punishment can work a miscarriage of justice, just as excessive punishment can.” He was perplexed by the fact that prisoners have civil liberties. “Persons who want to exercise their religious rights without interference can do so just by not committing crimes punishable by imprisonment.”

Posner reveled in displays of Nietzschean flair. Of course professors are effete and sententious, he said; they are “tame because they have no claws.” Of course politicians are ruthless; “society is composed of wolves and sheep,” and the wolves invariably “rise to the top.”

At his judicial confirmation hearing in 1981, one senator remarked that the views Posner had expressed in his work were enough to get him hanged. They were not enough, in those days, to keep him off the federal bench.

Over the years, though, Posner became even more outspoken—as well as more erratic and more liberal.

As a judge, he had never been one to restrict himself to the issues and arguments presented by the parties. But toward the end of his career, he began to disregard fundamental tenets of judicial conduct. He took to supplementing appellate records with his own internet research. In a case about inflatable rats that some unions had placed by the side of the road, he even delved into his personal experience. (“… my Chicago rat was only about three feet from MLK Drive … Here are [my] two photos …”)

Some of Posner’s later writings seemed to come from an altogether different person. In cases about prison conditions, voting rights, immigration hearings, government disability benefits, and more, he developed a passion for abstract rights and the little guy.

This turn was most evident in his approach to “pro se”—that is, lawyerless—litigants. In a 1987 opinion, he opposed the court’s appointment of a lawyer for a pro se on the ground that the “merit of his case” should be put “to the test of the market” for contingency-fee representation. Yet in his final year as a judge he claimed to “aw[a]ke from a slumber of 35 years,” and started complaining that “most judges regard [pro se litigants] as a kind of trash.”

Posner saw himself as a judicial pragmatist. He believed that judges should bring “open-mindedness, curiosity, intellectual breadth, [and] imagination” to their endeavors. He used to shun other pragmatists, such as Justice Stephen Breyer, for being overly active pragmatists. In hindsight it becomes apparent that he had no basis for doing so. His philosophy was open-ended and thus vulnerable to abuse—including, it turned out, by his later self.

Posner leaves behind a towering body of work, but also a gnawing question. What drove him to produce it?

“In the end Posner is his own best refutation.” That was David Brooks’s conclusion in a 2002 article picking apart one of Posner’s dozens of books. Posner was “not motivated by any impulse that can be captured through the reasoning of law and economics.” Posner wrote, Brooks surmised, for no better reason than that “human beings are social creatures who feel compelled to express their ideas.”

Richard Posner didn’t know what made his mind tick. He was a mystery, just like the rest of us.

Corbin K. Barthold is Internet Policy Counsel at TechFreedom.