Our Most Posnerian Justice

By Eric Segall

See if you can identify this person. He was one of this country's most important judges before he recently retired.  He is a white male from an educated family who grew up in one of our most populous states. He grew up a Republican, but his judicial decisions on social issues did not reflect the politics of the current GOP. He came of age before the Federalist Society came into existence. His opinions were often non-originalist and non-doctrinalist. He was fiercely independent. Who is he?

If you first guessed Richard Posner, that would be correct. If you guessed Anthony Kennedy, you'd also be correct.

There is little doubt that Kennedy is the most important Justice of the last 30 years, and there is little doubt that Posner is the most important non-Supreme Court judge of the last 30 years. In their final years, they both issued important decisions on same-sex marriage and abortion. Over the course of their long careers, they both had the confidence, open-mindedness, and integrity to change their minds on important constitutional law issues.

In 1989, Kennedy joined an opinion by William Rehnquist that would have effectively overturned Roe v. Wade by applying a rational basis test to abortion restrictions. Three years later, Kennedy explicitly affirmed Roe (albeit with substantial changes to abortion doctrine).

In 1976, Posner wrote a book review denying that the Constitution grants gays and lesbians the right to marry, and even as recently as 2008, he thought recognizing a right to same-sex marriage would be a mistake.  Nevertheless, in 2014, Posner wrote a an opinion striking down same-sex marriage bans that was, in the words of a prominent Court commentator, a "witty deeply moral masterpiece."

It is not typical for powerful men known for taking strong positions to change their minds on such important topics. But it is praiseworthy, and shows a reasonableness that many judges lack.

Both judges were much more concerned with facts and consequences than legal rules and formalist reasoning. Judge Posner, of course, is famous for his pragmatism. Here is one of his accounts of judging in America:

American judges operate in a setting of extreme uncertainty, which forces them to exercise an uncomfortably large amount of discretion, casting them often in the role of de facto legislators. They are reluctant to admit that they are ... “occasional legislators,” and have been skillful in concealing the fact from the public, being abetted in this regard by the legal profession, which has an interest in depicting the law as a domain of sophisticated reasoning rather than, to a considerable extent, of politics, intuition, and emotion.

Interestingly, Justice Kennedy has been criticized by many Court commentators for judging by "politics, intuition, and emotion." In the "Tempting of Justice Kennedy," Terry Eastland argued that Kennedy's votes in Planned Parenthood v. Casey (upholding Roe) and Lee v. Weisman (invalidating an official prayer by an invited clergyman at a public high school graduation), were improperly motivated by politics and emotion. And Mathew Franck wrote this after Kennedy's opinion in Obergefell v. Hodges (overturning state same-sex marriage bans): "[T]he good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue."

Both judges were known much more for their transparency and open evaluation of real-life consequences than for masking their value judgments with formalistic reliance on prior legal doctrine. At the end of his Obergefell opinion, which never clearly adopted a standard of review, Kennedy laid bare his value judgments without clouding them with legal jargon: 

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Judge Posner, in his opinion invalidating same-sex marriage bans, observed that "homosexuals are among the most stigmatized, misunderstood and discriminated against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights ... is a source of continual pain within the homosexual community."

It is almost impossible to imagine any other judge, even one who agrees fully with these decisions, using this kind of language. Close your eyes and imagine Justices Kagan or Breyer making these kinds of transparent appeals to what Posner and Kennedy thought were universal and obvious claims. And this is the main point. Neither Posner nor Kennedy pretended that they reached their decisions in hard cases because the "law made me do it." They both understood at a very base level that in cases implicating hard legal issues, the law never "made them do it."

There are of course points of departure between the two men. In his federalism decisions, Kennedy arguably relied on formal boundaries more than Posner ever did (although these boundaries did not stop Kennedy from siding with the liberals to overturn state term limits, and he also agreed Congress could regulate the use of home-grown marijuana).  Posner was a much more concise writer than Kennedy while Kennedy's rhetorical flourishes, when they were successful, were more artistic than Posner's. But these are just minor differences given the substantial personal and professional similarities between these two legal giants.

These two men, who dominated the legal landscape in this country for so long, albeit often in different ways, agreed that judging requires judgment and consequences matter regardless of formal legal rules. I'll have much more to say about all this in the future, but for now it is enough to ask this question: is it a coincidence that the most powerful judge in America for the last thirty years, and the most cited legal scholar (and most prolific opinion writer)  over the last thirty years, both emphatically rejected legal formalism. I think not.