Posner on greatness

Professor Collins’ series on Judge Posner give us many insights into the thinking of a great judge. The irony is that Posner doesn’t care about being great. He is bored by the idea.

It is not that Posner lacks for ego. Oh, God(s), no! He has ego aplenty. In fact, his ego is so strong that he “nicht eine Scheiße” about the opinions of others. His thinking, his research, and his writing is what he cares about. If others find it wrong, or even immoral, Posner is perfectly indifferent to their opinions. What he does care about–what drives him–is the quality of his intellectual effort and the joy that he derives from that endeavor.


8 responses

  1. “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

    Chief Justice John Roberts

  2. “Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

    Justice Louis D. Brandeis

  3. If Posner has a weakness as a scholar it is demonstrated by his answer on Story, no real interest in legal history. He shares it with most of the academic community, so that even in con law the classic cases are no longer in the texts While He display an interest in Hand as a non con law judge, Hand is in the torts books only because of Posner’s misreading of Carroll Towing. The problem is compounded by the mass of case law. When I was in law school Traynor was the judge of judges, doubt he is much read any more. Friendly is remember by Posner, not sure by many others, though definition of standards book was once the book in ad law. Posner like Cardozo will flourish for a while as a cult figure and then he also will be forgotten. What judge wrote the first important decision on the Turntable doctrine, a rule Holmes tried to screw up? With the catagories gone it may no longer be that important, but the development of the doctrine is a very good explainer of modern tort law.

  4. Dredd, That is a view of the exclusionary rule Posner rejects in his view on privacy and it lost much of its traction in Stone v Powell and with the rise of the good faith test. Yale Kamisar pressed this view on Posner in the privacy questions.

  5. I disagree with RepentingLawyer. I think Posner’s weakness is best displayed in how little he understands men he claims to admire. Every time I read something by Posner I’m reminded of that old crack regarding gullibility and the media–everything one reads in the newspapers is true except for the 10% one knows to be false.

    “Bickel thought that the Justices could educate the masses to fall in line with the Justices’ superior insights. Holmes harbored no such hopes, which he would have described as illusions, because he was skeptical about the force of moral reasoning.”

    The fact this was allowed to appear in the Harvard Law Review is an embarrassment not only to Posner but to the law review because the last sentence is categorically wrong. Holmes was not skeptical about the force of moral reasoning. He was skeptical about moral reasoning precisely because he found it forceful. He wanted moral or religious reasoning out of the law because he blamed such reasoning as the cause of the Civil War. Holmes had started off at Harvard a fan of men like William Lloyd Garrison but by the time the war had ended considered them to by crazies. This was one of the major reasons he loathed Debs; Debs based his economic arguments in moral language and Holmes had heard that garbage once before and wasn’t going to swallow it again. This would later cause Holmes to reject what he called the monkish or priestly argument that life has a spiritual purpose because it was just such spiritual utilitarianism that lead people like John Brown to justify their violent behavior.

    Every time I read Posner say something about Holmes I cringe because Posner doesn’t have even a foggy clue as to what Holmes thought–and yet he wrote a book about the man! Incredible.

  6. Holmes was a moral skeptic in the sense that he doubted that moral judgments had an ultimate or objective basis, which I think is what Posner means by force. He did not doubt the capacity of such reasoning to move to action. That time had upset many fighting faiths does not mean there was no time when such a faith had provoked a fight.

  7. The fact that Holmes believed that moral judgements had no objective basis is the foundation of his moral skepticism. The foundation of morality is quite distinct from the force moral reasoning has. Posner says force, not foundation. I take him at his word.

  8. Dear Kenneth and RL,

    Your discussion is worth the price of admission. Thanks to you both.

    My take: Kenneth is closer to understanding Holmes than RL. For what is worth, I too have seen too much bad done in search of too much good.

    All the best.


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