Nov 7, 2013

Posted in Posner v. Scalia, Uncategorized

Posner on Writing, Avoiding The Supreme Court, and, well, Cats

So how does Posner write so much? He never stops. Ever.

I don’t really have any routines. Well, if I’m at home or in the office I have a desk and a computer. And I write. I’ve never thought in terms of any particular routine. There are a lot of interruptions, emails and so on. Whenever I have free time, I write. Judicial opinions or academic stuff. I don’t have any quota of words. I understand full-time novelists, say, they will want to do a certain amount of words a day in order to finish a book. Often it’s the same type of day, the same writing instruments. I’m not at all like that. I have to give priority to my judicial work, so when I write an opinion or when I’m editing, I always do my judicial work first.

And his wife seems to be okay with this:

Ha! I didn’t know that about myself! Well, it just shows I’m compulsive, right? I’m a compulsive writer. That’s funny. I am compulsive. I don’t do much else. I don’t take vacations. My wife and I don’t go out often. Sometimes for dinner or the theater, but not often. So I work weekends, nights. I have lots of time and I write. I am fast, I cover a lot of ground.

Posner has no interest, whatsoever, in joining the Supreme Court. None. Absolutely none. He says so many times.

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

Can I count this a subtle jab at Scalia? Really it’s at all 9. He continues that as a Justice he wouldn’t be able to write enough.

Also, because I’m a compulsive writer, I like to write. The way we hear cases, we occasionally have cases that all the judges sit on, but most of the time, we’re sitting in panels of three judges, so we split up the case among three judges. Sometimes I assign myself a little more than a third, because I’m selfish. But if you sit with eight other people [like the Supreme Court] you only get 1/9th of the cases to write. I’m not interested in that. Now the Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by 9 and that’s a little more than 8 opinions a year. That’s ridiculous! I write around 90 opinions a year. I think they get up to an average of about 20 opinions per justice total. I don’t enjoy writing dissenting and concurring opinions, because once the case is decided, there’s very little interest in these other opinions. I just wouldn’t enjoy the Supreme Court. Absolutely no desire to be on it.

So I’ve actually done the math on his opinion authorship a few years ago. He writes about 90 per year.  Easterbrook (then Chief) wrote about 70. Every other judge wrote about 50. He writes nearly twice as many as any other active judge on the 7th Circuit. I’ve inquired a bit about this, and he seems to take on a lot of opinions that no one else wants to write, and that would otherwise go to staff attorneys. I’ve also heard that he writes the opinions entirely by himself, and that clerks mostly edit and insert citations. It is astounding.

The most astonishing revelations is that Posner is a cat person!?

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

I bet we can track Posner’s turn from Capitalism to Keynsianism with his turn from Dogs to Cats. Someone should run a regression on this.

And Posner doesn’t like sad stuff, and wants to be cremated.

What is guaranteed to make you cry?

I don’t cry!  I don’t like grim books or movies, so I steer clear of them. I don’t like emotional things. Adventure is fine, but I don’t like things that are sad.

What would you like carved onto your tombstone?

Ha-hah!  Well, I’m not planning to have a tombstone. I believe in cremation. No tombstone for me.

Well that explains that.

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  • Steve Rappoport

    I was most interested in what he claims are his writing procedures. In a previous life, I headnoted judicial opinions for a legal-publishing company, and so many of them were by him. (In addition, contrary to what he now says about concurring and dissenting opinions, he did not seem reluctant to write them.) I often found the specific rulings in his opinions difficult to set down in a fully coherent way. In fact, sometimes I would discover that he had made a ruling several pages earlier, and I would have to go back to tease it out; it simply had not been clearly stated.

    I concluded early on that he dictates his first drafts and then plays with them. A common phrase in his opinions is “as we shall see.” He goes off on tangents, explores related matters, asks questions, and sometimes addresses the matter at hand. He seems incapable of being straightforward. Is his writing intellectually alert? Yes. Entertaining? Absolutely. Does it expand the legal universe? No question. Does he state things that other judges would not dare to say? Yes, yes, yes.

    But there were many times when I wanted to shake him and tell him that he was his own worst enemy in terms of communicating clearly.

    • I’ve also noticed that his opinions never have sections that are separated. They often read, as you note, like a stream of consciousness. I’m sure this allows him to write fast, and with interest content, but it is often tough to parse out what the legal reasoning is.

      • Steve Rappoport

        A Posner opinion is usually fun to read, intellectually provocative, and legally bold. It reads so well that if you do not have to parse it, you love it. Unless you have to take it apart for professional reasons, it likely will not occur to you that there may be problems with it.

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