Retired Posner had significant impact on Indiana

With more than 30 years on the appellate bench, Judge Richard Posner of the 7th Circuit Court of Appeals has authored some important opinions about Indiana law. He wrote the majority opinions that allowed same-sex couples to marry, enabled Syrian refugees to immigrate and required voters to show identification before casting their ballots.

His most recent decision has rippled well beyond the 7th Circuit. Posner retired from the bench during the Labor Day weekend. According to the Chicago Tribune, Chief Judge Diane Wood called Posner one of the “leading public intellectuals” whose “opinions have had an impact around the world.”

Posner was still listed on the 7th Circuit’s website Tuesday and there was no notice of the vacancy his immediate retirement creates. Already the Chicago appellate court has two vacancies created by the retirements of Judge Terence T. Evans who held the Wisconsin seat and Judge John Tinder who held the Indiana seat.

Notre Dame Law School professor Amy Coney Barrett has been nominated by President Donald Trump to fill the Indiana seat on the 7th Circuit. She is scheduled to testify before the Senate Judiciary Committee Wednesday at 10 a.m.

Posner, a native of New York, joined the 7th Circuit after being nominated by President Ronald Reagan in 1981. After graduating magna cum laude from Harvard Law School in 1962, he clerked for the late U.S. Supreme Court Justice William Brennan Jr. and then worked as an assistant to Thurgood Marshall, then Solicitor General of the U.S.

In 1969, he migrated to the Windy City to join the faculty of the University of Chicago Law School. He continues to teach there part-time.

Indiana University Maurer School of Law professor Charles Geyh called Posner one of the most influential judges below the Supreme Court. His cases are studied in law schools more than any other judge.

“I have a soft spot in my heart for him. I think he will go down as one of the truly great judges in American history,” Geyh said, comparing Posner to the late judges Learned Hand of the U.S. District Court for the Southern District of New York and Henry Friendly of the 2nd Circuit Court of Appeals. “I think he will be a towering figure in American law.”

Posner’s career on the bench followed an arc that began with a difficult period settling into the federal court and ended with personal comments about other jurists that took a harsh tone. In between, his thinking evolved into a more pragmatic approach that bent toward the liberal view.

In the 2014 Baskin v. Bogan, Posner wrote the opinion that found Indiana’s ban on same-sex marriage violated the Equal Protection Clause of the 14th Amendment. In 2016, he swatted down Indiana’s ban on refugees from Syrian in Exodus Refugee Immigration, Inc., v. Michael R. Pence, et al. 

In the Exodus ruling, Posner scoffed at former Gov. Mike Pence’s argument that the state was not targeting individuals based on their nationality. “…that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating.”

Also, in 2007, Posner upheld Indiana’s voter ID law in Crawford v. Marion County Election Board. The law was subsequently upheld by the Supreme Court of the United States but by 2013, Posner told the Huffington Post his decision was wrong. Still he defended his ruling by saying, “we weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”

Posner’s early approach to the law was, Geyh said, offensive and simplistic. As an example, Geyh pointed to one of Posner’s early writing on the economics of the baby shortage. The 1978 legal journal article Posner co-authored caught the attention of the media, including the Wall Street Journal and Newsweek, and led to the headline in the Washington Post, “Meet Richard Posner, the Judge Who Would Sell Homeless Babies.”

In later years, Posner disputed he was advocating the selling of babies. In a conversation with Howard Bashman in 2003, he said, “I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.”

However, Geyh noted, as Posner’s scholarship and thinking matured, he moved away from a cold-hearted ideology to a more sophisticated and nuanced approach. Geyh admires that Posner was able to make the evolution and his fearlessness to change his thinking and call out nonsense.

In 2015, Posner engaged in a spirited debate with 7th Circuit Judge David Hamilton in the 2015 case Rowe v. Gibson over the amount of research a judge should do. The plaintiff in the case, Jeffrey Allen Rowe, was a pro se inmate suing prison officials for not providing him adequate medical care. Posner supplemented his majority opinion with information from websites by the National Institutes of Health, the Mayo Clinic and Wikipedia.

Geyh called the exchange “absolutely stunning” and said the dueling opinions did a “tremendous service.” The IU Maurer professor said he is more on the side of Hamilton, finding problems with judges who use extraneous research to help support a weak case. But Geyh noted Posner asked an important question about whether judges have a role to step in to assure access to justice, especially among pro se plaintiffs who have limited resources to bring a case.