Richard A. Posner’s Reflections on Judging

National Review Online | Published on October 21, 2013

By Edward Whelan

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When I first learned of Seventh Circuit judge Richard A. Posner’s new book, its wide-open title, Reflections on Judging, set off alarm bells. Some five years ago, when I reviewed Posner’s misleadingly titled How Judges Think, I commented that it read “like a hasty copy-and-paste compilation [of his previous articles], with little attention to harmonious coherence” and that it was “at least one thorough redraft short of being ready for publication.” The title of his new book seemed to threaten more of the same.

Much more of the same is indeed what Posner has provided. Posner asserts in the opening sentence of his introduction that his subject “is the challenges that the federal courts face today, with particular emphasis on rising complexity.” The rubric of complexity ends up being expansive enough to enable Posner to stitch together some eight previously published articles and two talks, together encompassing Posner’s thoughts on the broad case for “legal realism” against “legal formalism” (what in How Judges Think he denominated the case for pragmatism against legalism); the need for better management of the federal judiciary; the absurdity of the Bluebook citation manual; the value of photographs in judicial opinions; bad judicial writing; his own path to the judiciary; and much more.

As was true of How Judges Think, there is much in Reflections on Judging that is interesting and insightful. It is such a hodgepodge, though, that I’m not inclined to attempt to survey and critique its arguments. (On Posner’s case for realism/pragmatism against formalism/legalism, I’ll stand by what I wrote of How Judges Think.)

I’m instead going to limit myself, at least for now, to pointing out that Posner somehow sees fit to republish, in somewhat modified (but not corrected) form, his hilariously incompetent and wildly irresponsible New Republic screed from over a year ago that purported to critique Reading Law: The Interpretation of Legal Texts, the treatise co-authored by Justice Antonin Scalia and Bryan A. Garner.

I hasten to disclose/highlight that I don’t claim to be a neutral bystander on this matter. Among other things, I explained in my series of posts that any competent reader of the Scalia/Garner book would recognize that they cite specific cases for the limited purpose of illustrating particular canons—not, as Posner contended in his foundational misunderstanding, as “exemplars … of textual originalism” generally. I further showed in detail that it was Posner who was misrepresenting each of the cases that he alleged that Scalia and Garner had misrepresented. When Garner, in his response to Posner, credited me with having “done a masterly job of demonstrating why the six [cases] that Judge Posner assails  … are entirely correct,” Posner replied with a baseless ad hominem attack on me, which he used as a diversionary tactic to avoid responding to my critiques.

It speaks volumes, I fear, about Posner that he would republish the same false charges against Scalia and Garner. Indeed, it’s even worse than that. Posner muses that Scalia and Garner

might attempt to defend their misreading of case after case after case by saying that all they’re interested in is the particular canon that a particular case illustrates: the fact that the court gave other grounds for its decision, ignoring [sic (presumably he means in addition to)] the applicable canon, is irrelevant.

But apart from the fact that any competent reader would recognize that that is obviously what Scalia and Garner were doing, Garner himself says exactly that in his response to Posner. So it’s not a question of what Garner “might” say. The reader of Posner’s book would have no way of knowing that, however, for Posner never cites Garner’s response.

Worse yet, in the very next sentence in his book, Posner misleads his trusting reader into thinking that Scalia and Garner are making the “suggestion that a single canon of construction can decide most of the cases that [they] discuss.” (Emphasis in original.) But they make no such suggestion. On the contrary, they compare the canons to clues in a good mystery—does any good mystery have only a single clue?—with “different clues often point[ing] in different directions.”

I can understand an author’s temptation to republish a disjointed set of articles in book form, especially if a prestigious publisher (Harvard University Press published both How Judges Think and Reflections on Judging) isn’t going to require any real editing. But I can’t understand how anyone of integrity would use the occasion to republish an article that has been demonstrated to be a reckless smear.

Edward Whelan is president of the Ethics and Public Policy Center.