Monday, July 08, 2019

Dick Posner: The Man Behind the Robe

By Eric Segall

Now that the Supreme Court term is over, I decided to write a personal post about a much misunderstood legal giant whom I know extremely well.

Retired Seventh Circuit Judge Richard Posner has written more than fifty books, thousands of articles and essays, and over 3,000 judicial opinions. His writings on law and economics, anti-trust, torts, constitutional law, and numerous other issues of national interest have made him “a legend of American jurisprudence.” There is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court.

Much has been written, and will be written, about his storied career, which has been without a doubt polarizing. Posner’s approach to judging, an obsessive pragmatist with little use for legal doctrine, his stern questioning from the bench to shell-shocked lawyers, and his commitment to the law and economics movement in his early days as a professor and then a judge, alienated substantial numbers of legal academics, lawyers, and economists. On the other hand, others hailed him as a genius. As Lincoln Kaplan once wrote, Posner’s “approach to law, some legal scholars contend, makes the field worthy of a Nobel Prize—which he would win, many say, by acclamation….”

This essay is not, however, about Posner’s long career as a judge, academic, public intellectual and antagonist. This is a story about the man behind the “legend.” I hope I’ll be forgiven for the extremely personal nature of what follows but I know of no other way to tell this story.

My first contact with Judge Richard Posner came almost a decade ago. I had put the finishing touches on an essay arguing that the Supreme Court of the United States is not a court and its Justices are not judges. I talked to my wife Lynne (a non-lawyer) about sending the draft to my friends and colleagues for review. She asked me whether anyone else had made this kind of argument before. I said no, but there was one person, an extremely famous judge, who just might be sympathetic based on his new book “How Judges Think.” She suggested I send it to him. I responded that I didn’t know him at all, and his reputation as a harsh critic was legendary. Lynne gave me the kind of look only a spouse can give, so I looked up Judge Posner’s e-mail address, and at 5:00 p.m. on a Friday, I pressed the send button with great trepidation.

Around 11:45 that night, I checked my e-mails, and there was a response from the Judge. He read my essay, liked some of it, gave critical feedback, and at the end asked me several questions inviting further conversation. I was more than a little shocked not only that he read it but that he responded so quickly. I later learned Posner does this for just about everyone who sends him draft pieces. He is extremely generous that way.

We carried on e-mail conversations for a while, and then Posner agreed to be interviewed by me in his Chicago chambers for a possible article. This led to a six-hour conversation that would have gone much longer if I hadn’t been too tired to stay in the moment (Posner, in his 70’s at the time seemed like he could have gone on all day and night). The conversation was eventually published in the New York Review of Books, where Posner carried on famous debates with the great legal philosopher Ronald Dworkin, 

After that piece was published, Lynne and I were traveling to Chicago and she suggested I e-mail Posner to see if he and his wife Charlene would like to have a meal with us. At this point my relationship with Posner had only consisted of the six-hour conversation in his chambers and e-mails dealing with professional matters. But they agreed, and suggested we have Sunday brunch in downtown Chicago.

The meal lasted over three hours, and we met the real Dick Posner. He regaled us with funny stories about his career, including his arguments with Justice Scalia about evolution. Posner was quite social—a quality I hadn’t yet seen in him. Charlene was charming, funny and warm. At one point, Charlene shushed Posner because he was criticizing Scalia at a decibel level that was likely entertaining folks at other tables. We laughed and laughed, and the four of us left the meal committed to seeing each other again. What a wonderful surprise it was. The meal also marked the moment when I finally became comfortable calling Judge Posner, “Dick,” something he famously insists on with just about everyone. He prefers this informality because, he later told me, “titles just get in the way.”

Dick and I continued communicating by e-mail about current events, legal and non-legal. Eventually, I started kicking around the idea of writing his biography. I knew there was already one in the works, but it wasn’t by a law professor, and many people told me I was better equipped to put Posner’s career in an appropriate context. When I mentioned this to Dick, he complained that no one would ever want to read about his life or career, but if I wanted to take it on, sure.

We started talking by Skype once a week. With his permission, I recorded all the conversations. We talked about his childhood, (his mother read him Shakespeare at an early age), his college days at Yale as an English Literature major, his Harvard Law School experience (Editor-in-Chief of the Law Review), his clerkship with Justice Brennan, his days working for the Department of Justice, his academic stints at Stanford and the University of Chicago, and eventually his judicial experiences. The only subject off limits was his current family other than his view, repeated many times, that he could not have had the career he had without Charlene taking masterful care of everything involving the household and their two sons. 

We also talked about the news, the Supreme Court, philosophy, legal education, and many other topics. We fell into a pattern where we would discuss something controversial, often disagree vehemently, yell at each other, and then reach a common understanding or agree to disagree. While we were yelling, I often thought to myself, I can’t believe I am arguing with Judge Posner this way. He was never, ever fazed by my challenging him, and neither of us took it personally. Dick consistently believed it was fair to criticize the arguments, not the person (this admittedly changed for him in recent years when he has criticized Supreme Court Justices in ways that even I, a staunch critic of the Court, disapproved).

I cannot do justice to how much I enjoyed these conversations. Most amazingly, although Dick expressed his opinions in the strongest of ways, I noticed that he would often change his mind. When we first started talking, for example, he completely opposed cameras in the Supreme Court or his court. This was an issue deeply important to me, and I wrote a lot about it. One day he told me I had convinced him on the matter. His desire for cameras at the Seventh Circuit became so strong that shortly before he retired, he offered to pay for the equipment and expenses himself.

After the 2008 economic collapse, he famously and publicly changed his views about free markets and law and economics, the subject areas he was most famous for influencing. He also publicly changed his views on same-sex marriage. Although he wrote a book review in 1997 arguing that the Constitution obviously didn’t protect same-sex marriage, almost twenty years later he wrote an opinion striking down same-sex marriage bans. I had dinner with him shortly after that opinion was issued, and he asked me when I thought the law had changed concerning the rights of gays and lesbians to marry (a question Scalia asked Ted Olson at the oral arguments in the Prop 8 case). I told him that I did not have a well-developed theory to answer that question other than the history of the Supreme Court shows that values, not law, drive constitutional questions, and America’s values had changed. I asked him the same question, but I can’t do justice to his complex and interesting answer here other than to say he focused a lot on the children of openly gay couples and how unfair it was to them that their parents couldn’t marry, and how that was not an issue 30 years ago, because far fewer gays and lesbians were allowed to be open and adopt children.

Dick’s intellectual curiosity and honesty led him to change his mind publicly and admit mistakes on many occasions. This ability to confess error is extremely rare in people of his stature and is part of what makes Dick so special.

As we became closer, I began to ask Dick to appear at various conferences and symposia. He never said no. Not once. He wouldn’t travel so the appearances took place via technology unless they were in Chicago. I mention a few of these events (self-serving as they are) to show what kind of friend Dick could be. I was one of many to whom he showed such kindness.

After Justice Scalia died, I developed what most everyone, including Dick, thought was the wacky idea of freezing the Court at eight Justices, evenly divided among Republicans and Democrats. Despite his disagreement, however, Dick arranged for me to present the proposal at a highly prestigious University of Chicago workshop series where his colleague, Judge Frank Easterbrook, glared at me like I was from Mars (that’s another story). That workshop helped me refine and improve the idea.

Like most law schools, mine has a lunch series where we invite scholars to present papers and books. I invited Posner to be our guest (again via technology) and he agreed. This happened after I published my book “Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges.” Posner, while sympathetic to much of my critique about the Supreme Court, did not fully agree that the Court was not a court. In any event, my faculty turned out en masse for the lunch event, and Dick  was his usual entertaining, opinionated, and brilliant self. In response to a question from a colleague of mine, he responded (quite gratuitously) and with a sheepish grin, by saying that the “Supreme Court isn’t a real court anyway.” My faculty understood that stamp of approval. That moment of validation meant the world to me.

I once arranged for Dick to speak at a constitutional law symposium in Chicago to comment on a book presentation by Professor Randy Barnett. During that event, Dick proclaimed that he didn’t care about what the Constitution said because he couldn’t understand how today’s problems could be answered by a text written so long ago (and he also thought text didn’t actually drive how other judges decided cases either). He described with characteristic honesty how he decided cases:
My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask ‘is this blocked by some kind of authoritative precedent of the Supreme Court’? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.
His comments went viral after Professor Josh Blackman published them on his blog. The criticism flowed in from all directions, but Dick just said what he truly believed. Imagine that.

I eventually decided that I could not write his biography because I had lost all objectivity due to our friendship. That realization hit me after I spent yet another week in Chicago trailing Dick at work. His kindness to his law clerks, his sincere and abiding interest in making the best decisions he could, and his (justified) aggravation at lawyers during oral arguments, all highlighted that experience.

Dick’s sense of humor, his willingness to consider all points of view, his creativity, his laugh, and his generosity are obvious to all who know him well. His compassion has extended to pro se litigants to whom he has devoted much of his time after his retirement. And he does it all with just the right touch of mischievous glint in his eye and warmth in his heart, where it really matters.