Posner and ‘Beasts’

by Ed Whelan

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.”

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