Judge Posner: Public Opinion in Public Affairs

Richard Posner is an influential legal theorist and author and currently a judge on the United States Court of Appeals for the Seventh Circuit. Posner attended Yale as an undergraduate, and was first in his class at Harvard Law School. Following his graduation from Harvard, Posner clerked for Justice William J. Brennan Jr.; he later worked as assistant to the Solicitor General of the United States. In 1969, Posner began teaching at the University of Chicago Law School, where he remains a Senior Lecturer to this day. In 1981, Posner was appointed to Seventh Circuit's Court of Appeals. Posner helped found the law and economics movement, which argues that the primary goal of law should be outcomes that are economically sensible and efficient rather than "just." Known for his eclectic mix of beliefs, Posner can't be pigeonholed as a liberal or a conservative: he has written that marijuana should be legalized and also that there are times when "torture should be used." Posner was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Posner is the author of dozens of books, including Public Intellectuals, and The Problems of Jurisprudence, and How Judges Think, which was published in April 2008.  His next book A Failure of Capitalism: The Crisis of '08 and the Descent into Depression will be released May 2009.

  • Transcript


Richard Posner: Oh I don’t think . . . Judges at our level, I don’t think think much about public opinion. I think the Supreme Court does because, you know, it’s interesting example a couple of years ago. There’s a Court of Appeals for the Ninth Circuit, which is California and a number of the western states decided that the phrase “under God” in the Pledge of Allegiance was unconstitutional. And that caused a certain sensation. But on the other hand it was just the Ninth Circuit. It was just the west. And anyway it was subject to appeal by the Supreme Court. Well the Supreme Court found a technical ground for reversing the decision. It didn’t deal with the issues of religious freedom that are involved. It was very technical. Now if the Supreme Court decided “under God” in the Pledge of Allegiance was unconstitutional, that would have a tremendous impact. And I . . . I think the Supreme Court justices, consciously or unconsciously, are mindful of the public opinion consequence of any decision. But at our level, our decisions would rarely have significant effect on public opinion. So the response to the public is not a . . . not a factor. But on the other hand, there’s no doubt that judges’ ideological views, and political responses, and moral feelings and so on are influenced by the temper of the . . . of the community. So some of us think what we mean by morality is durable public opinion, right? So the judges will share the morality of their community, which is ultimately a product of what people feel. So public opinion has a, you know, tremendous underground effect. The courts are all more conservative, for example, than they were in the ‘60s. So there’s been an ideological drift in the country. And equivalently, there’s been a change in public opinion, and that’s affected who has been appointed as a judge; but also effected how judges react.

Recorded on: 11/21/07