The Man Behind the Robes–A Q&A with Richard Posner

Professor K.L. Collins has, if that is possible, outdone himself with his question and answer session with Judge Posner, another in a series of pieces about that intellectual giant. This time the products of Collins’ work–Posner’s own words–are chilling. Posner comes across much like I imagine Friedrich Wilhelm Nietzsche, that is, deadly and frighteningly cold, and, just maybe, malevolently so. By the way, Collins’ expertly draws Posner out on Nietzsche’s The Genealogy of Morals (1897). In any event, if you care about truly understanding one of the greatest legal minds in this or any other century, you must read Professor Collins’ The Man Behind the Robes–A Q&A with Richard Posner at Concurring Opinions.*


H/t How Appealing.

16 responses

  1. I’ve always wondered how well Posner is received in courts outside the Seventh Circuit. I will typically cite his opinions in district court cases because of the way he explains the technical matters involved in Social Security claims. He’s a concise writer and takes the time to understand the medical issues more than most judges I’ve read. But I rarely use his decisions as persuasive authority in the Eighth or Tenth Circuits because I worry about rubbing the presiding judge the wrong way.

  2. Nick,

    I can’t speak for judges on the Eighth Circuit Court of Appeals. But, when I sit with the Court of Appeals, and certainly as a district judge, an opinion by Judge Posner causes me to read it carefully and for precisely the reason you give. He writes clearly, and that is not limited to SS appeals.

    All the best.


  3. Judge:
    Fascinating interview of a fascinating man. The only quarrel I have is with the sour grapes-ish comments about the U.S. Supreme Court. I recall Robert Bork, after his unsuccessful nomination, expressing similar sentiments to an interviewer. It’s somewhat reassuring to know that intellectual giants such as Posner and Bork are not above occasional rationalizations.

  4. Posner is dead right on the Supreme Court, and in most of his critiques of his colleagues. Our supreme and appellate courts have become de facto political institutions, and in some cases, even district courts have gotten in on the act. Even Judge Kopf, who has a vested interest in promoting the fiction that our “courts” are still courts of law, recently conceded the point.

    In a sea of black-robed mediocrity, Judge Posner is a dreadnought. A national treasure.

  5. A federal appellate judge whose biggest influences are Mill, Nietzsche and Yeats? What a nightmare.

    Not just limited intellectually, but also by period: pretty much middle of 19th to middle of 20th century. I’m sure he must like Holmes a lot, too.

  6. Rich, thanks for this. It’s very rare that I don’t enjoy reading a Posner opinion and I have read three (I think) of his books. The ones I recall are “Sex and Reason,” “Cardozo: A Study in Reputation” and “The Problems of Jurisprudence.” The third book contained a rare error by such a brilliant man. He had a sentence in there that went something like: “Speaking of great legal minds, Justice Jackson never went to law school.” I was teaching at Albany Law School and knew that Jackson had studied at Albany for a year, but (as was common) didn’t take a degree but took the New York bar and started practicing. Cardozo did the same thing at Columbia, though I think he stayed two years. Anyway, I wrote a letter to Posner saying that his statement was dangerously close to the truth, but Jackson actually went to Albany Law School. I got a very nice and apologetic letter saying that if there was a second edition he’d have it fixed. Pat.

  7. I’ve never understood Posner’s fame. I’ll concede that he writes well but then so do other judges. Arguably, he writes better than most. But he’s always struck me as an intellectual lightweight. I rarely find his reasoning persuasive and I never feel there is any depth of insight into either the human condition or the foundations of the law. He always seems to be skimming the surface. He has a set world view, he applies it, and the case is finished. If there is a person in the country who I see as the anti-Posner it is Justice Breyer.

    From the interview linked above, “Posner: I don’t know what I meant.” Somehow his lack of reflection gets spun into “candor”. Personally, i would be highly embarrassed to have something I said quoted back to me and not be able to explain what it meant. Yet his fans find this “refreshing”. Oh well, to each their own but I’ll simply say that the continual trumpeting of his greatness doesn’t make it so.

  8. I love Holmes. Holmes is nothing like Posner. Holmes was a real philosopher who struggled with the eternal questions and the law was Holmes way of working out those problems. One can disagree with the results Holmes came up with but the personal struggle was a real one. Holmes never had any children because “this is not the type of world I want to bring children into.” There is none of that existential angst in Posner.

    Holmes was an originator, Posner is an implementer. Everything about Posner’s writing and thought demonstrates the skill of the craftsman. Posner can quote Holmes and he can quote Nietzsche and he can claim Orwell as his own but he can never be their equal them as men. Those men fought and struggled with life–Posner sneered at it.

  9. Well, Kenneth, on one level I agree with you entirely, both on Holmes and on Posner.

    For reasons that require a lot of explanation, though, I would maintain that Holmes’s influence on the law has been unfortunate. He was at Antietam as a young man, and that probably explains a lot, not that I’m any kind of student of Holmes’ life.

    Even so, the time in which he lived and ruled from the bench, without of course romanticizing it, was not yet infected with intellectual fads like logical positivism except here and there. As a quirky intellectual fad logical positivism, and the like, are relatively harmless; when they become the dominant outlook, they are something of a disaster.

    To be fair to Posner, it’s hard to acquire any depth or insight when you’ve had it so easy. Never in the military, never had to really work other than as a student, where you might say he was very talented so that probably wasn’t much effort for him either.

    I don’t like his reasoning any more than you do. Seems to me even when he gets things right the reasoning is fundamentally flawed. But he might be the judge for our time in much the same way Holmes was the judge for his.

  10. Kenneth,

    You write, “Those men fought and struggled with life–Posner sneered at it.” While you and I might disagree on Judge Posner’s place in history, you have perfectly captured my discomfort with him as a person. Thanks for your engagement.

    All the best.


  11. Pat,

    Your story makes me feel better about Posner as a human being. Thanks for taking the time to share it.

    All the best.


  12. What has logical positivism got to do with this, even Ayer gave up on verification, Holmes never heard of it and Posner is a pragmatist, who were around in Holmes’ day. You sound like a late 50s early 60s Jesuit law school text on jurisprudence, though you may not be that old, I am. If you mean legal positivism that has been around art least since Austin.
    That you do not find Posner’s reasoning deep is a touching tribute to your self esteem or an endorsement of emotive theory of ethics,which?

  13. Judge The thing that people find cold about Posner is his utilitarianism, which I think has faded with the years, Caveat. Heard Martha Nussbaum converse about her friendship with Posner and about his warmth and kindness as a friend. Martha meets anyone’s standards for a philosopher. If we are going to go all natural law maybe we should leave judgments of character to those who have to make them.

  14. Pat, I think Roscoe Pound only went to law school for a year. On the other hand two year degrees were common until the 1940s. I think the last year Creighton had 2 year graduates was 1939

  15. Seems to me logical positivism is just grandiose empiricism because Wittgenstein or something. And empiricism is pretty old, but overall I think you’re right I went off-topic a bit – I was responding to Kenneth. Not very well, it seems.

    In any case logical positivism remains the dominant intellectual framework for the ruling class in the US, and from what I have seen that also describes Posner, though I’m by no means wedded to that opinion. He came out with an interesting opinion in January in a case called Fields v. Wharrie. Split panel.

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