Law & the Courts

Posner and ‘Beasts’

In a New York Times interview about his decision to retire, former Seventh Circuit judge Richard A. Posner reiterated his candid description of his lawless “pragmatism”:

“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.”

Posner also divided his critics into two camps: those who hold a “formalist” conception of the law and “reactionary beasts [who] want to manipulate the statutes and the Constitution in their own way.”

His dehumanizing rhetoric aside, Posner draws a very sensible line. As someone who has steadfastly advocated formalism and who offered a formalist critique of Posner’s pragmatism well before Posner’s sharp turn to the Left, I’m happy to be on the right side of that line.

Yet I have to wonder whether Posner can be trusted to apply the line he draws. If there is a single decision of Posner’s that conservatives have criticized on non-formalist, results-oriented grounds, I can’t think what it is. Further, Posner has shown himself eager to impute illegitimate motives to judges who reach results that he agrees are dictated by formalism. Thus, for example, he states in his recent mess of a book (see my series of posts—parts 1, 2, 3, 4, and 5) that the four dissenters in Obergefell “were Catholic” and that “it’s difficult to believe that their religious beliefs play no role in their votes in cases that have a religious dimension.” And he’s also tossed an error-strewn ad hominem at me.

Moreover, Posner has forfeited any legal ground for opposing the supposed “reactionary beasts.” He wants to “manipulate the statutes and the Constitution” in his way. They want to manipulate them in theirs. So Posner has much more in common with the “reactionary beasts” than he evidently recognizes. Maybe that’s fitting for someone who says he has “exactly the same personality” as his cat—“Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”

Most Popular

Culture

Courage: The Greatest of Virtues

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Or Listener), As the reporter assigned the job of writing the article about all of Sidney Blumenthal’s friends and supporters told his ... Read More
Immigration

My American Dream

This morning, at 8 a.m., I did something I’ve wanted to do for as long as I can remember: I became an American. I first applied for a visa in early 2011, and since then I have slowly worked my way through the system — first as a visa-holder, then as a permanent resident (green card), and, finally, as a ... Read More
U.S.

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More