Former federal appeals court Judge Richard Posner said he rarely looked to “legal rules, statutes, [and] constitutional provisions” when deciding cases.
The 78 year-old retired judge’s decisions became progressively more liberal later in his career. In a recent interview, Posner revealed just how lawless he, and federal courts in general, can be in their decision-making.
The New York Times reports:
He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
In other words, when the law gets in a judge’s way, the judge should just ignore it. “A case is just a dispute,” as Posner put it during the interview the The New York Times. “The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
Posner called that approach “pragmatic.” Reality tells us that it is lawlessness and arbitrary decree.
It means Judges use their superior minds to tell people what’s right and wrong. According to Posner, the Constitution and existing law do not need to be upheld. The ever-changing opinions of the Judge need to be enforced.
The Washington Examiner reports:
When confronting a case with some form of legal obstacle in the way, the former 7th Circuit Court of Appeals judge said he would look to circumvent whatever prevented him from reaching his desired result.
[…] The 78-year-old Posner said he chose to retire after realizing that he had “lost interest” in the cases before his court. President Ronald Reagan appointed Posner in 1981, and the former Midwestern appeals court judge said he recently began to wonder, “Why didn’t I quit 10 years ago?”
Posner’s politics changed significantly since he was appointed by Reagan. As a progressive, Posner didn’t believe in upholding permanent law, but rather interpreting the social climate of the day, and deciding based on what he wanted an outcome to be.
Why didn’t he quit ten years ago?
Posner claimed his decision to retire came from a lack of interest, and a distaste for “technical matters” that caused the court to treat civil cases with impatience.
The New York Times continued:
The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.
“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”
Posner officially began his retirement on September 2.