Richard Posner has been a judge on the United States Court of Appeals for the Seventh Circuit in Chicago for the last thirty years. He is the author of many books including, most recently, The Crisis of Capitalist Democracy. Eric J. Segall is Professor of Law at Georgia State University College of Law. The following discussion took place during the last year.
Eric J. Segall: In your book How Judges Think (2008), you wrote that traditional legal reasoning, meaning reliance on text, precedent, and history, does not resolve difficult appellate cases. If judges are not introspective, their candour will not illuminate the actual springs of their decisions. Can you describe in more detail what you mean by “the actual springs of decision” in hard cases?
Richard Posner: If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.
EJS: What you said, “fool themselves,” leads me to a follow-up question. In your writings I think you are a little unclear on how much of this “fooling themselves,” as you just put it, is intentional and how much is not. For example, the Supreme Court cases interpreting the Eleventh Amendment, which defines when states are immune from being sued. The decisions in those cases are completely inconsistent with the clear text of that amendment, which says that states cannot be sued by citizens of another state; and yet so-called textualists like Justices Antonin Scalia and Clarence Thomas have supported that countertextual interpretation, holding that even suits by citizens of the same state as the state they are suing are banned by the amendment, despite the word “another.”
RP: I don’t think much of it is intentional. People want to avoid what psychologists call “cognitive dissonance,” which means holding inconsistent views simultaneously, such as that one is just applying the law and that one is making up the law as one goes along. It is an actor’s adage that no person is a villain in his own eyes. We were taught in law school what we are supposed to be doing as judges—apply the law, not make it up. So I don’t think that there is a lot of cynicism in judges.
In the case of the Eleventh Amendment, for example, I think that judges such as Justice Scalia honestly think that it has a nonliteral meaning that is implicit in the Constitution. But to treat it as implicit in the Constitution is of course a departure from literalism—from the mechanical application of authoritative text to resolve legal questions. But Justice Scalia has called himself a halfhearted originalist, in recognition that a judge has to make compromises with orthodoxy and be realistic, at least on occasion.
EJS: It sounds like Justice Scalia is willing to make textual and historical compromises for federalism cases like those involving the Eleventh Amendment, but he is rarely willing to make those compromises for individual rights cases. I don’t know where that distinction comes from.
RP: Yes, I think that is true. It is interesting what he said in the oral argument in the McDonald case (the 2010 Second Amendment case involving Chicago’s law prohibiting handguns in which Scalia held that the Second Amendment applies to the states). He said that even if hundreds of people die as a result of his interpretation of the Second Amendment, that would be irrelevant to the correctness of the decision. But obviously he doesn’t think of himself as a callous person.
EJS: If Justice Scalia were here and we asked him, “Why do you privilege federalism background principles but not individual liberty background principles (such as in the abortion and gay rights cases)?” he would give his answer, and you and I would agree that it is a political answer. It may be right or wrong but it is political. And I am trying to figure out how a man that smart—I am not just picking on Justice Scalia—how any justice could disagree that such a legal interpretation is inherently value-laden.
RP: I am sure he sincerely believes that he is just applying the Constitution in good faith. He is a good lawyer; he is a very good writer; he has real flair for judging, as I noticed long ago when he was a court of appeals judge. But I don’t think he or anyone can actually derive results in difficult, emotionally charged cases from the constitutional text. Still, I am sure he tries, and in that respect is unlike another very influential justice, William Brennan. Brennan was a very nice person and a very good boss [Judge Posner clerked for Justice Brennan]. But he was indifferent to what was in the opinion; he just cared about results. He had been a very good judge on the New Jersey Supreme Court. He had legal analytic abilities. He just didn’t care about them as a justice of the US Supreme Court.
It wasn’t that he was that radical. He never gave me the impression of feeling that strongly about the issues, but he was liberal and in tune with Earl Warren and I know he reacted very negatively to Felix Frankfurter. Frankfurter had been a teacher of his at Harvard. He said Brennan had been a good student but not a great one. Frankfurter was on the Supreme Court when Brennan was appointed and was, I think, condescending toward him. I thought that was a factor in Brennan’s constitutional liberalism though of course not the only factor.
EJS: Do you think Justice Brennan would agree with your descriptive account of the Court as a “political court”?
RP: Yes, I think he would agree. It was his strength that he was very quick to compromise with the other justices. This made it much easier for him to get a majority than it would have been for more “principled” justices. I had a funny experience with him once. I wrote an opinion and he’d made a few changes in it but nothing major. My wife and I went off to visit her parents for a few days and when we came back there was the opinion in page proof on my desk and I went to Justice Brennan and said there is a big chunk missing from it, so that now the two halves didn’t go together anymore. He was a little embarrassed and said that Justice Black had come to see him, didn’t like that part, so he cut it out. That was that. That was his strength because if he had refused to accede to Black’s wishes, who knows what would have happened?
The justices are all different. Frankfurter was a big self-deceiver. He was a very brilliant person and a passionate apostle of judicial restraint, but there is a famous article by a political scientist—Harold Spaeth—that systematically examined Frankfurter’s opinions reviewing decisions by administrative agencies and found that somehow Frankfurter always sided with business against labor.
EJS: I find that most law professors are unwilling to say that the Supreme Court is a political court. Why do you think that is and how can we change it?
RP: I think there are a couple of reasons. In the case of judges, I repeat that people don’t like to think of themselves as hypocrites or villains. But another thing that a judge will say—and I would agree with this to a degree—is that judicial opinions are public documents and public officials can’t be as candid as private persons. There is an accepted rhetoric of judicial expression, and judges have to write that way. They are protecting the authority of the judiciary by avoiding excessive candour. Law professors don’t labor under that constraint. Their problem is that what they are comfortable with discussing is legal doctrine and not judicial psychology or political science.
In law school I had no idea that Supreme Court justices didn’t always write their own opinions—that often they delegated the opinion writing to their law clerks. I didn’t dream of that because the law professors didn’t give the students the faintest glimpse of the realities of the judicial process. In defence of that they could have said that if they induced premature cynicism on the part of the students, the students wouldn’t learn the tools of their trade and so wouldn’t be effective lawyers. It may be good for the students to believe that these doctrinal niceties are really critical to judicial outcomes. Law professors these days are somewhat more candid about the judicial process but tend not to examine or teach it realistically.
EJS: Can I ask you on this point, how important is transparency to the rule of law? When the Court decides issues that divide the nation, it often comes forward with an opinion that is not transparent at all. I think that is a threat to the rule of law because government officials are imposing their will in a coercive way without explaining honestly why they are doing it, without being transparent. Do you agree with that?
RP: I agree in part but an example of a necessary hypocrisy is Brown v. Board of Education. It was obvious to everybody that what was wrong with public school segregation was that it was an integral part of a system of apartheid. The Supreme Court didn’t want to say that, I am sure at Justice Black’s urging because he had a sense of how the South would react. So the Court put it in terms of the educational benefits of integration, which was fine—probably it was necessary to achieve unanimity. But the implication was that it might be fine to segregate drinking fountains because drinking fountains are not important like education.
But then the Supreme Court without explaining how one gets from education to drinking fountains declared all forms of public racial segregation unconstitutional (with a partial exception for prisons) in a series of basically one-word per curium opinions. The Supreme Court didn’t want to say what the truth was about the South—that its social and political system was a vicious attempt to keep black people in a condition of quasi slavery.
Once I said something in an opinion that is obvious and that everybody knows but is never said—namely that the intensity of judicial review of a district court’s decision will depend in part on the respect in which the district judge is held by the appellate judges. That made some of the district judges angry with me. I haven’t repeated it.
EJS: I clerked in 1983 for the Northern District of Georgia and then the Eleventh Circuit. There were twelve district court judges, and most ran their chambers the same way. The law clerks would get the file off the shelf and draft the order granting or denying summary judgment, and the judges would review them and more often than not sign them as written.
RP: A lot of law clerks are smarter than their judges, because intellectual ability is a bigger factor in choosing a law clerk than in choosing a judge—judges are chosen by politicians, though the screening process assures that most federal judges are competent. I’m guessing there are more brilliant law clerks than there are brilliant judges and justices. I suspect that with the rise of the law clerks the nature of judicial appointments changed. There was a time when a lawyer would not want to be a judge if he wasn’t prepared to write a lot. No more. And even competent writers often do not like to write a first draft. They find that it’s like climbing a mountain.
EJS: Even judges?
RP: Even judges don’t like that. So nowadays few judges write their own opinions, though they edit them, sometimes so heavily as to make one wonder why bother rather than write the thing themselves. Stephen Breyer on the Supreme Court and Mike Boudin in the First Circuit are examples of judges who like to write and do write their own opinions. My colleagues Frank Easterbrook and Diane Wood write their own opinions. Others may but I’m just not familiar with their practices. Justice John Paul Stevens wrote the first draft of his opinions. I think most of the Supreme Court justices do a fair amount of writing. But throughout the federal judiciary (I imagine the state judiciary as well), few judges write first drafts of their opinions and many opinions are written by law clerks with little judicial input (except for the outcome) or revision.
EJS: The two judges I worked for were both politically active before they became judges. And they both had a sense of fairness and justice. I’m not sure we have much of that anymore.
RP: We are getting fewer judges with a political background. Many federal judges now are coming from state courts; some were magistrate judges or bankruptcy judges. The federal judiciary is becoming more like a civil service, a career job rather than a lateral-entry job. All but one of the Supreme Court justices are former judges, which historically is most unusual.
EJS: Speaking of the Supreme Court, I think Justice Anthony Kennedy comes the closest of anyone I’ve seen to actually linking his political preferences and his values to his results. The other justices, like Sandra Day O’Connor before she retired, seem to pretend that text and precedent actually resolve the cases before them. For someone who believes what you and I believe about the Court being political, is it a good thing that Justice Kennedy is up front about his values?
RP: O’Connor was political in the sense that she wanted the Court to be centrist. She didn’t want it to go too far in either direction. I had heard she had a system—it’s not uncommon—where she was presented with a draft that all her law clerks had to sign off on before it was presented to her. So one was writing, one editing, and one checking citations; they would discuss and debate the opinion thoroughly, and finally they would produce a consensus document for her to review.
As for Justice Kennedy, whom you mentioned, I don’t think he is more or less ideological, or that his opinions are more or less reflective of his political views, than the other justices. It is just that his ideology is not a standard conservative ideology; it is in business cases, but not in cases involving capital defendants and homosexuals.
EJS: He said during his confirmation hearings that there is a zone of individual privacy beyond which the government cannot go.
But given his politics, whether we agree or disagree with his politics, your criticisms of the Roper decision (where the Court held that states could not execute juveniles) in How Judges Think struck me as not necessarily consistent with your description of the Court as a political court. Justice Kennedy didn’t pretend that his conclusion that states could not execute juveniles was based in law. He used social science data, controversial judgments about the moral culpability of adolescents, and international law, etc. Although I don’t agree with him trying to distance his personal values by using those sources, at least he did not pretend that the result was generated by text and precedent. I think that is a good thing.
RP: I think the reliance he places on foreign courts is good in the sense that he is being candid. He likes to feel himself as part of the international community of justices. I don’t think he cares much about the social science studies. I am guessing that came from his law clerks. But I think you are right that he is more transparent than the other justices so one has a better sense of what actually impels him.
EJS: So in my perfect world, Justice Kennedy would have said in Roper: “I think it is wrong to execute people under seventeen, the text is ambiguous, and the precedent goes both ways. We have a degree of discretion in deciding the case and I can’t help but bring my personal values to that. I am in power and I get to say and I think it is wrong to execute juveniles.”
RP: That is what Oliver Wendell Holmes said. We have the sovereign prerogative of choice and for me [Holmes] it is worse for the government to violate the law than for a criminal to go free. Holmes could get away with that blunt statement of personal preference but it requires a degree of rhetorical skill that few judges have had. Holmes and Robert Jackson had it, though Jackson was different from Holmes. Holmes, despite his Civil War experience, was rather cloistered, bookish. He wasn’t very practical, but had great rhetorical skills and was a very thoughtful person, alert to big issues in society, though not interested in the nuts and bolts. He was very transparent in his judicial opinions, essays, and of course letters.
Jackson was different because he had such a breadth of experience as attorney general and as the chief Nuremberg prosecutor and a close adviser to Roosevelt. He also had great rhetorical skills so that he could be candid and yet be accepted as a real judge and not just a politician in robes. These are not styles that a law clerk can emulate.
One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that. I don’t think the Court at present has incandescent intellects of the caliber of Holmes, Louis Brandeis, Jackson, and Frankfurter. (Frankfurter may have been the most brilliant of these, though he was not as good a justice as the others.) But maybe this is just nostalgia.
EJS: Hasn’t the nomination process become a total farce? At her confirmation hearing, Justice Sonia Sotomayor said repeatedly that she would decide hard cases based on the law, and John Roberts made the infamous analogy to the judge as an umpire.
RP: I have made fun of Roberts about the umpire thing but I don’t blame either of them because the confirmation hearings are not for real. At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law. Sometime later I received the printed report of the confirmation hearing, and my answer—my nuanced answer—had been changed (without notice to me) to yes, judges should just apply the law and not make the law.
EJS: You told the truth. Why can’t they now?
RP: As I said, judicial appointments were less controversial in those days, so Senator Thurmond probably wasn’t paying close attention to my answers. The morning of the day of the confirmation hearing the judges who were going to be testifying were brought to the Justice Department and we were given the questions that would be asked by the Republicans, since the administration was Republican. That was like cheating on a test.
The only senator at the hearing was Thurmond. I had been nominated because Ed Meese (I found out later), the White House counsel in the first Reagan administration, wanted to shift the ideology of the courts of appeals, and to achieve this he wanted to take the appointment power away from the senators; previously—except in the D.C. Circuit, which had no senators—court of appeals judges, like district judges, were basically senatorial appointments, and they tended to be patronage appointments often with little attention to the appointee’s political ideology.
There was a vacancy on the Seventh Circuit, and Senator Charles Percy, the senior senator from Illinois (and an influential Republican), had his candidate and it wasn’t me, and the White House decided they would buck Percy, whom they didn’t much like because he was a moderate. He was a nice person—he wasn’t a fighter—so they made a deal with him that if he would support me, they would give his candidate the next vacancy. And they did. Anyway this is what I heard had happened; it is hearsay.
EJS: I think you wrote to me that the nominees should have to answer questions about specific issues and that we should do away with the hearings altogether.
RP: The senators do a very poor job at judicial confirmation hearings. It is amazing to me that no senator took Roberts up on his umpire remark. Fifteen of them were sitting there and they let the remark pass unchallenged. I think the problem is that they are given questions to ask by their staff. They read the questions to the nominee but since they don’t really know what is going on they can’t ask a follow-up question.
EJS: How could Justice Thomas get confirmed after he said under oath that he had never discussed Roe v. Wade with anyone is his life?
RP: The problem is that if the nominee says, “I’d be lying to you if I said I didn’t have a preliminary judgment,” he is accusing his predecessors of having lied, right? It is very tricky. The problem is that we have a political system in which the definition of a gaffe is telling the truth.
EJS: Can I ask you a question about a recent book review you wrote in The New Republic where you suggested that maybe it would have been a good thing had President Roosevelt’s Court-packing plan worked? The reasons you gave struck me as all having to do with having a weaker Supreme Court. Can you go into more detail about why you want a weaker Supreme Court?
RP: I don’t think the justices are up to deciding really difficult policy issues. Maybe no one is, so probably the issues should be left to Congress and the president to decide, with very light review by the courts. I think professional judges are particularly not up to the challenge posed by such cases.
One of my favourite examples of a—may I say?—dumb decision is the Paula Jones sexual harassment case against President Clinton, Clinton v. Jones. It was just a few years from the end of Clinton’s term, and the justices could have said that we’ll let him put the lawsuit on hold for those years. You don’t want to have the president deposed about sex, let alone extramarital sex, in a lawsuit in which he’s the defendant. So give him his remaining years; or at least the district judge should consider all possible grounds for dismissing the suit before he has to be deposed (the case in fact was dismissed on grounds unrelated to what he said in his deposition).
Instead they decided unanimously to deny him the limited immunity he sought. Justice Breyer, the most politically savvy of the justices at that time, wrote a concurring opinion expressing misgivings but apparently did not have the full courage of his convictions (he was relatively new on the Court). The decision was a very serious mistake; if decided the other way we would have been spared the impeachment, which accomplished nothing. It was not an analytical error, but a lack of political savvy and simple common sense. The Clinton v. Jones fiasco argues for having more worldly justices, as used to be the case, rather than just professional judges.
I didn’t actually realise until I read Jeff Shesol’s book Supreme Power* that the Court-packing plan was rather ingenious. If you get to be seventy-five, the president can appoint another justice, so you can either retire or stay around, but on a bigger court where your influence will be diluted.
Having a fixed retirement age is really harmful to the state courts; that I know. For example, there was a very good judge on the Oregon Supreme Court, Hans Linde. He was excellent but he was forced to retire in his seventies. He went back into teaching. Charles Fried of Harvard Law School, a former US solicitor general, was appointed to the Supreme Judicial Court of Massachusetts in his sixties and there was compulsory retirement at seventy. He told me that when he was sixty-seven he realised he’d be retiring in three years and it would be a little late to be going back into teaching then, so he quit early. He was a very good judge. And you know it is a geriatric profession. Stevens is remarkable; he is going strong at ninety-one, even in retirement.
I think for anybody in a management job, ten years is the limit; you make enemies, you get stale. But I have been a court of appeals judge for almost thirty years, and the cases keep changing. The district judges tend, some of them anyway, to get tired because there is a lot of repetition in a trial court. But court of appeals judges and Supreme Court justices have the stimulation of constant variety. Holmes retired when he was ninety-two; he was definitely slowing down but he had written some really good opinions in his late eighties. There are other examples. Most judges seem to function quite well to at least eighty.
The justices in the 1930s whom Roosevelt tried to shove off the Court—I don’t think it was so much an age problem. Owen Roberts was young, and switched his views only under pressure from Charles Evans Hughes, who was old. There was a tremendous change in American society and politics between 1929 and 1933, almost a revolution, and anybody who had become a lawyer in the 1920s would have tended to have the same views as the old guys. In fact they weren’t that old. I think their average age was around seventy-two (that’s my age!). So they weren’t really such fossils.
If you compare today’s constitutional law with the Constitution of 1787 everything has changed, but it has taken 224 years, so the change has not been abrupt. The Senate started off with twenty-six members who were indirectly elected and were expected to be members of the political and social elite of the country. It was a genuine deliberative body. So you could say that the Supreme Court today is taking the place of what the framers expected the Senate to be.
Eric J. Segall