* Served as a law clerk for Supreme Court Justice William Brennan from 1962 to 1963
* Was the chief judge of the US Court of Appeals for the Seventh Circuit from 1993 to 2000
* Embraces the notion of an ever-evolving, “living” Constitution
Richard Posner was born to Jewish parents in New York City on January 11, 1939. He earned a bachelor’s degree from Yale University in 1959, and a J.D. from Harvard Law School (where he was president of the Harvard Law Review) in 1962. After completing his formal education, Posner served as a law clerk for Supreme Court Justice William Brennan (1962-63); a legal assistant to the commissioner of the Federal Trade Commission (1963-65); an assistant to the U.S. Solicitor General (1965-67); and general counsel to the President’s Task Force on Communications (1967-68). In 1968-69 he was an associate professor at Stanford Law School, and since 1969 he has taught at the University of Chicago Law School. In 1972 Posner was a founding editor of The Journal of Legal Studies.
On October 27, 1981, President Ronald Reagan nominated Posner to the U.S. Court of Appeals for the Seventh Circuit, and he was confirmed by the U.S. Senate four weeks later. Posner continues to serve on this court, where he was the chief judge from 1993-2000.
In 2000, Yale Law School librarian Fred Shapiro calculated that Posner was, by a wide margin, the most frequently cited legal scholar “of all time.”
Since his appointment by President Reagan, Posner’s political views have drifted steadily leftward. In a July 2012 interview with NPR, he lamented the “real deterioration in conservative thinking” that he believed had taken place in recent years and said: “I’ve become less conservative since the Republican Party started becoming goofy.”
Posner strongly opposed the Supreme Court’s 2008 decision in District of Columbia v. Heller, where a 5-4 majority ruled that the Constitution’s Second Amendment protects an individual’s right to possess a handgun for self-defense. By Posner’s reckoning, this decision, and especially the majority opinion written by Justice Antonin Scalia, was “an example of motivated thinking”—i.e., thinking shaped by how the Justices in the majority personally wanted the case to be resolved. Posner contends that the Second Amendment has nothing whatsoever to do with an individual’s right to bear arms, but that this fact “didn’t slow down Scalia” because “he loves guns” and “he’s a hunter.”
Posner also condemned the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, which struck down the McCain-Feingold Acts limits on how much money corporations and unions could spend on ads to support or oppose political candidates during the weeks immediately preceding primaries and general elections. “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment,” said Posner.
Posner’s philosophical orientation as a jurist is rooted in a school of thought called “legal pragmatism,” which holds that the value of ideas depends ultimately on their adaptability to changing mores and circumstances, and not on their presumed immutability or permanent validity—a view consistent with the notion of an ever-evolving, “living” Constitution. Posner has described legal pragmatism as: (a) a “forward-looking” perspective “valuing continuity with the past only so far as such continuity can help us cope with the problems of the present and of the future”; (b) an “empirical” way of interpreting the law; (c) an intellectual framework that is“skeptical” of the idea that any decision, legal or otherwise, can ever really represent “the final truth about anything”; and (d) an “antidogmatic” and “experimental” mindset founded upon “freedom of inquiry” that may lead to “the replacement of one perspective or world view with another.”
In accordance with his commitment to legal pragmatism, Posner affirms that the evolution of public opinion plays a role in the decisions he renders from the bench. For instance, in a November 2015 Yale Law Journal essay titled “Eighteen Years On: A Re-Review,” Posner explained why he had recently written a prominent judicial opinion which stated that laws banning same-sex marriage were in violation of the Fourteenth Amendment’s Equal Protection clause, whereas in 1997 he had explicitly rejected the notion that there is a constitutional right to same-sex marriage. Wrote Posner in 2015: “[A] decision by the Supreme Court in 1997 establishing a right to homosexual marriage in all states would have been a mistake. A change in public opinion was required to make the judicial creation of such a right acceptable. The change occurred. By 2011 a majority of Americans supported authorizing same-sex marriage…. By 2015 the time was ripe for the Supreme Court to lay the issue to rest….” As for laws defending only male-female marriage, Posner has gone so far as to impugn them as part of “a tradition of hate” and “savage discrimination.”
Posner has been highly critical of what he calls the Supreme Court’s “rearview mirror syndrome,” meaning its inclination to look “backward to our eighteenth-century Constitution” for “the answers to current issues.” At Loyola University School of Law’s 2015 Constitutional Law Colloquium, for example, he said: “I’m not particularly interested in the eighteenth century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the eighteenth century can guide our behavior today, because the people in the eighteenth century could not foresee any of the problems of the twenty-first century…. I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.” Though Posner’s oath-of-office as a judge explicitly requires him to “solemnly swear” to uphold the Constitution of the United States, he told the audience at Loyola: “It’s funny to talk about the oath judges take to uphold the Constitution, since the Supreme Court has transformed the Constitution in its decisions. The oath is not really to the original Constitution, or to the Constitution as amended, it is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.”
Writing for the Yale Law Journal in 2015, Posner asserted: “Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.”
In a June 2016 op-ed which he wrote for Slate magazine, Posner again argued that the Constitution is anachronistic and essentially worthless. “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” he wrote. “… Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today…. In short, let’s not let the dead bury the living.”
Posner has stated that, when rendering a decision, he gives more weight to “common sense” that to anything else: “I’m a pragmatist. I see judges as trying to improve things within certain bounds. … 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 … go with the common sense solution.”
Posner’s low regard for the Constitution is mirrored, to some extent, by his attitude toward the Magna Carta, the British document that established for the first time (in the year 1215) the principle that everyone, including the king, was subject to the law. In 2015 Posner said: “Magna Carta has absolutely nothing to say to us. The people who talk about Magna Carta don’t understand Magna Carta, don’t understand history, don’t realize it was repealed a couple of years after. It was a power struggle between a bunch of aristocrats and a bunch of kings. The profession is always looking backwards, to the eighteenth century, to old decisions.”
In 2016 Posner presided over a case in which Exodus Refugee International, an Indiana nonprofit organization dedicated to helping foreign refugees resettle in that state, sued Indiana Governor Mike Pence. At issue was the fact that in November 2015—just days after several Islamic terrorists had murdered 130 people and wounded hundreds more—Pence issued an executive order directing state agencies to deny federal grant money to organizations seeking to assist refugees from Syria. In October 2016, Posner was part of a three-judge panel on the Seventh Circuit Court of Appeals that upheld an injunction that a lower federal district court had issued against Pence eight months earlier. Below are some key excerpts from Posner’s written opinion:
From 1973-2015, Posner published a total of 64 books (counting separately each edition of several of his legal treatises).
After Supreme Court Justice Antonin Scalia’s death in February 2016, Posner derided the posthumous praise that had been directed toward the newly deceased Justice. “I think the Supreme Court is at a nadir,” wrote Posner. “The Justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd.”
Further Reading: “Richard Posner” (Home.Chicago.edu, Ballotpedia.org); “The Double Life of Richard Posner” (Harvard Magazine, Jan-Feb, 2016); “Federal Judge Richard Posner: The GOP Has Made Me Less Conservative” (NPR.org, 7-5-2012); “Richard Posner Bashes Supreme Court’s Citizens United Ruling” (Daily Beast, 7-14-2012); “Eighteen Years On: A Re-Review” (by Richard Posner, November 2105); “America’s Most-Cited Jurist Hates Words And History” (The Federalist, 12-2-2015, re: laws defending only male-female marriage); “Judge Posner Apologizes For Statements He Made Many Times Before About Constitution” (JoshBlackman.com, 7-1-2016, re: 2015 Constitutional Law Colloquium); “Richard Posner … Apologizes for ‘Careless’ Remarks about U.S. Constitution” (Washington Times, 7-6-2016, re: Posner’s Yale Law Journal article of 2015); “Law School Professors Need More Practical Eexperience” (by Richard Posner, Slate.com, 6-24-2016); “A Judicial Rebuke of Mike Pence’s Syrian-Refugee Policy” (The Atlantic, 10-3-2016, re: the Exodus Refugee case against Mike Pence).