Posner on same-sex marriage

That Judge Posner has changed his mind on the same-sex marriage question is only slightly less dramatic than if the Pope decided that the Church had been too tough on Satan. Less bombastically, Posner’s change of position was a sea change in the judge’s thinking.  Professor Ronald K.L. Collins details this about-face in Posner on Same-Sex Marriage: Then and Now. It is captivating reading.

As I concluded Professor Collin’s piece, I thought of Mr. Justice Holmes. Some may remember that he too changed his views dramatically on the value of free speech in his Abrams’ dissent. See Thomas Healy, The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States, 39 J. Sup. Ct. History (March 2014)  (download free at the Social Science Research Network) (Abstract: “It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.”).

It is well-known that Posner holds Holmes in high regard. See, e.g., Richard A. Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., (Paperback – January 1, 1997). Consequently, we should not be surprised then that Posner emulates the great man in the flexibility of the mind. Indeed, Professor Collins provides us important insights into the ability of Posner to see the world differently as time marches on without the slightest concern about the bugaboo of “inconsistency.”

I urge you to read Collins’ piece. As you do, remember Emerson’s dictum: “A foolish consistency is the hobgoblin of little minds.”


The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist


Here is another in the truly remarkable series of articles written by Professor Ronald K. L. Collins for Concurring Opinions on Judge Posner.  Again, I am fascinated and urge readers to carefully review the piece.

This time law professors, judges and a journalist question Judge Posner on all manner of subjects, and he answers those questions.  The questions are broad ranging and Posner’s answers are sometimes provocative, other times candid, and all worth thinking about.

Here are three examples.  I would be especially interested in knowing what readers of this blog think about these questions and answers or any of the others questions and answers.

V. Law & Economics

Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?

[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]

Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.

[RGK note: Posner’s comment about psychology are, I think, very important.]

Next, consider this exchange about the “record”:

VI. The Record of a Case

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

Finally, for you criminal law folks,

XX. The Fourth Amendment Exclusionary Rule

Professor Yale Kamisar: Many years ago, before becoming a federal judge, you wrote an article forcefully criticizing the Fourth Amendment exclusionary rule. Do you still feel the same way about the search and seizure exclusionary rule today?

Judge Posner: Yes, especially with the emergence of really effective federal tort remedies for unreasonable searches or seizures. That is far superior to excluding what is often highly probative evidence.

[RC: For a listing of some of Judge Posner’s judicial opinions re the exclusionary rule, go here (and search “exclusionary rule”)]

I look forward to your thoughts.


A must read about Judge Posner

With a tip of the hat to the incredible resource that is Howard Bashman and How Appealing, you must read: “The Maverick — A Biographical Sketch of Judge Richard Posner: Part I.” authored by Ronald K.L. Collins at “Concurring Opinions.” It is a wonderfully written and insightful piece that contributes greatly to our understanding of Judge Posner.

The failure to put Posner on the Court is a modern-day tragedy of immense proportions. It is infuriating that no President–Republican or Democrat–had the guts to nominate Posner because they feared that he was just too damn smart and too damn candid and too damn unpredictable and too damn intellectually honest.


%d bloggers like this: