Richard Posner has finally become a pragmatist

by Henry on September 14, 2017

This exit interview with Richard Posner, who is retiring as a judge, is interesting.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it. … He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters. “These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.” …

Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.
In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds. “Davis needs help — needs it bad — needs a lawyer desperately,” he wrote.

On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said

I don’t want to be snarky – it is unqualifiedly great that someone of Posner’s stature on the right is taking up this cause. I do want to point out though, that it can be interpreted as a partial completion of something that was incomplete before – Posner’s commitment to pragmatism as an approach to understanding the law.

As the NYT piece notes in passing, Posner is famous for his argument that law should be interpreted pragmatically, as an exercise in problem solving. Yet as Jack Knight and Jim Johnson pointed out twenty years ago, in a response to Posner’s major book on pragmatism, he left out all of the political arguments that were part of the web and woof of pragmatist thinking in the early twentieth century. John Dewey, for example, saw pragmatism as tied up with democracy, and democracy with a commitment to radical equality, in which ‘publics’ would be able to solve problems without interference from Old Corruption.

Knight and Johnson quote a bit from Posner’s argument back then:

Today’s legal pragmatism is so dominated by persons of liberal or radical persuasion as to make the movement itself seem (not least in their eyes) a school of left-wing thought. Yet not only has pragmatism no inherent political valence, but those pragmatists who attack pieties of the right while exhibiting a wholly uncritical devotion to the pieties of the left (such as racial and sexual equality, the desirability of a more equal distribution of income and wealth, and the pervasiveness of oppression and injustice in modern Western society) are not genuine pragmatists; they are dogmatists in pragmatist clothing.

As Knight and Johnson point out, Posner’s efforts to divorce pragmatist problem solving from considerations of power simply do not make sense.

Posner …rightly affirms the central importance of unforced inquiry to pragmatism. Dewey made this theme central to his conception of democratic politics. He also made it central to his writings on law.62 Thus Posner correctly recognizes that “from a pragmatist perspective the main concern is with the danger of premature closure of legal debate.” But he then wavers considerably regarding the seemingly obvious political consequences of this statement. Unforced inquiry entails reasoned deliberation. If we are to avoid “premature closure,” however, it also seemingly entails free and equal access for relevant actors to all relevant arenas of deliberation, debate, and decision. While Posner readily accepts the first of these implications, he remains very reluctant to accept the second. This is especially clear in his remarks both on the diversity of the legal establishment and on the barrier that economic inequality presents with respect to access to the courts.”

More specifically:

He concedes that asymmetries of wealth or political power distort free and open inquiry in the American legal system. The adversary system does not much resemble the concept of unforced inquiry that is the pragmatists’ ideal and the scientists’ ethic. Furthermore, the competitors in our privatized competitive system of justice often have markedly and irremediably unequal resources. Most criminal defendants lack the resources to hire counsel equal in skill and experience to the public prosecutor, and public subvention of the cost of counsel for indigent criminal defendants has not been sufficiently generous to close the gap. Having identified another serious barrier to free and equal access, however, Posner once again falters. He finds “troublesome” suggestions that the remedy for these distortions of unforced inquiry “may require redistributing wealth or continually intervening in the marketplace of ideas.”

It would appear that in the intervening decades, Posner has changed his mind, and has done so in an eminently pragmatist fashion, as the result of practical experience. Again, I’m not looking to score points here – if someone like Posner picks up this cause, it is likely to resonate with people who would dismiss or ignore similar arguments from the left. Instead, I’m pleased that he’s developing his commitment to pragmatism, in the ways that Knight and Johnson advocated, rather than leaving it in a stunted condition.

{ 20 comments }

1

alfredlordbleep 09.14.17 at 1:14 am

As an aside I remember back in 2010 or 2011 Posner in TNR advocated possible grounds for court packing (the Supreme Court). Nothing constitutional precludes it. Court packing lately has been a bit more discussed for obvious reasons.

As a contrarian libertarian what-not, of course, he was the guy who favored the result of Bush v. Gore.

2

Tabasco 09.14.17 at 2:08 am

It’s telling that no Republican president ever nominated Posner for the Supreme Court. Sure, he’s the embodiment of the Chicago School, and certainly distinguished and smart enough, but they would have have thought, probably correctly, that he would not have been a reliable, set and forget conservative vote, in the way of Clarence Thomas.

3

RD 09.14.17 at 2:09 am

“…after a slumber of 35 years…”
I hope he outlives his grandchildren.

4

Raven 09.14.17 at 2:40 am

Not to hijack but to piggyback this (at least legally-related) thread for an update on a closed thread’s subtopic, “incitement”:

WaPo: Martin Shkreli jailed after Facebook post about Hillary Clinton

A federal judge on Wednesday revoked the $5 million bail of Martin Shkreli, the infamous former hedge fund manager convicted of defrauding investors…. While awaiting sentencing, Shkreli has harassed women online, prosecutors argued, and even offered his Facebook followers $5,000 to grab a strand of Hillary Clinton’s hair during her book tour.
“The fact that he continues to remain unaware of the inappropriateness of his actions or words demonstrates to me that he may be creating ongoing risk to the community,” said U.S. District Judge Kiyo Matsumoto, in revoking his bond. “This is a solicitation of assault. That is not protected by the First Amendment.

5

Matt 09.14.17 at 2:54 am

It’s hard to know what to make of Posner’s transformation over the years, other than, I suppose, to welcome it,(or if it makes up for the real damage he and those inspired by him did for a long time) but in fairness, his pragmatism was always more of the individualist sort inspired by Holmes (and in some ways James) than the more Hegelian sort found in Dewey. If you read Holmes’s _The Path of Law_, you can see a lot of Posner’s views set out there already. That’s a consistent enough strand of pragmatism to warrant the name, I think.

6

Cassiodorus 09.14.17 at 1:38 pm

I think most conservatives at this point would view Posner as a man of the left.

7

Nichevo 09.14.17 at 6:20 pm

“…after a slumber of 35 years…”
I hope he outlives his grandchildren.

What a curse!

I think most conservatives at this point would view Posner as a man of the left.

Beat me to it.

8

TM 09.14.17 at 7:18 pm

Posner: “These were almost always people of poor education and often of quite low level of intelligence,”

Mostly they are just poor. I’m glad Posner got around to the insight that people without lawyers shouldn’t be treated with contempt by the legal system, but he didn’t also have to insult their intelligence.

This legal system, its inaccessibility and unfairness, is America’s eternal shame.

9

Raven 09.15.17 at 12:33 am

TM @ 8: More specifically, “of poor education” covers it (no matter their current income); now, a fair test of intelligence would have been to give them good educations, say, at Wharton or Yale or Harvard, and see if then they still proved to be as clueless about the basic legal principles of the United States… *koff*BushTrump*koff*….

10

J-D 09.15.17 at 1:27 am

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said

In other words, he’s saying that his colleagues — at least, most of them — don’t believe in equal protection of the laws, no matter what it says in the Fourteenth Amendment.

Is such frankness as unusual as it seems to me?

11

b9n10nt 09.15.17 at 3:09 am

J-D @10

The ideological rationalizations that provide cognitive consonance for judges (just like parents and professionals of all types who wield immediate social power) are likely rooted in the practice of more immediate and perplexing dilemnas that the judge is required to resolve.

Like perhaps she knows that her jurisdiction can’t handle a certain volume of cases that are left at her doorstep and she either formally or tacitly must filter yadda yadda . I’m not saying it’s that but typically there’s some felt, situational pragmatism in beaurocratic cruelty.

And also, who can believe (in spirit, beyond the reach of rationalizing!) in equal protection in this society? She’s a US federal judge circa 2020. She’s have to see it, practice it, it would be expected of her. If she’s a federal judge she believes in equal protection by practicing “recreational” politics off hours. Because if the polity really did allow judges to practice equal protection, wow this would be an amazing, perhaps self-propelling step toward actual egalitarianism.

12

J-D 09.15.17 at 8:29 am

In the article I read:

He called his approach to judging pragmatic. His critics called it lawless. “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.”

In The Tyranny Of Words, by Stuart Chase, published in 1938, I read:

Chancellor Kent of New York State, a great legal authority, in a charming burst of frankness once wrote: ‘I saw where justice lay, and the moral issue decided the court half the time. I then sat down to search the authorities. … I might once in a while be embarrased by a technical rule, but I almost always found principles suited to my view of the case.’ The learned judge used his best judgement, came to a decision, and then ransacked the fat books for authority to support him. He almost always found it. I would be willing to take his decision, if he were a good judge, without the ornament of citations. The decision constitutes the reality of legal machinery; the citations contribute to the magic.

13

J-D 09.15.17 at 9:53 am

b9n10nt
I don’t understand whether that’s supposed to be an answer to my question.

14

alfredlordbleep 09.15.17 at 12:53 pm

Raven @9
give them good educations, say, at Wharton or Yale or Harvard

Right. Giving entry to those schools is not the same as getting a good education at ’em.

15

b9n10nt 09.15.17 at 2:48 pm

J-D @ 13

Yes. I think it is perfectly common to profess certain principles (equal protection) while being complicit in systems that neglect them. So…not unusual.

16

Raven 09.15.17 at 8:11 pm

alfredlordbleep @ 14: Point being, if they’d been through the same educational systems as, say, George W. Bush and Donald J. Trump, then Posner might have a basis to say that their poor grasp of law showed “a low level of intelligence” rather than simple untaught ignorance.

Meanwhile, Bush and Trump, who did go through those splendid schools, both have shown amazing incomprehension of law and legal principles… as, for that matter, did actual attorney Nixon, to take just the infamous example of his declaring Manson guilty before trial, or “If the President does it, that means it is not illegal”… but Posner utters not one word about their intelligence. Nor have federal judges regarded them as ‘kind of trash not worth their time’. So mere incomprehension of the law is not the deciding factor here, and never was.

17

J-D 09.16.17 at 9:19 am

b9n10nt
The question I asked was whether the frankness was unusual, so saying that complicity in the neglect of professed principles is common is an answer to a different question.

18

b9n10nt 09.16.17 at 9:57 pm

J-D:

Posner says that most judges believe that [poor people] are trash not worthy of a judges time. You (for good reason) equate this belief with a disregard for the equal protection clause of the 14th amendment. You also take Posner’s attribution as a frank admission by these judges that they indeed disregard the 14th amendment.

My point is (1) that the wondrous dexterity of human reasoning makes it quite possible for judges (and others) to simultaneously be biased against a class of litigants without frankly admitting (to themselves or others) that they are in fact biased and/or derelict in their Constitutional duties.

(2) Sure enough, given (1), there is no actual frank admission. Posner is not quoting any particular judge, he is attributing a belief to judges -a belief that the judges themselves might not cop to, let alone connect to the their own rejection of equal protection.

If I, for example, say that most US football players regard secret, illegal steroid use as an normal and acceptable part of their career, this does not amount to a frank admission of a criminal conspiracy by any particular player or players collectively. I’m the one saying it, not them.

19

b9n10nt 09.17.17 at 2:36 am

Bloix @19

The problem is not one of the federal courts or of the attitude of judges

Shouldn’t we nevertheless assume that the attitude of judges will be warped by the cognitive dissonance between “I’m good at my job” and “I know the system is screwing the poor”? Shouldn’t we expect attitudes like “they’re trash anyway” to take root and inevitably make the fundamental problem worse?

I’m projecting what I know of educators and social workers onto the legal system…

Alternatively, judges as a class are heroes of self-reflection and self-discipline.

20

TM 09.18.17 at 11:25 am

One reason why I’m skeptical of the legalistic line of justification – the judge just has to stick with the rules even if they feel the rules are unjust – is the fact that judges in reality often do not stick with the rules. For example the NY courts have basically redefined the concept of calendar time in order to practically ignore the constitutional “speedy trial” requirement (http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-delays.html).

But I agree it’s a political problem as well as a legal one. A few years ago the NYT published a well researched series about the failures of the US legal system that I found just devastating, maybe someone can find the link? Also The Divide by Matt Taibbi should really be an eye-opener. An interesting observation of Taibbi’s is that many public defenders share the system’s resentment against their indigent clients. It’s truly a class-based system of justice.

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