Judge Richard A. Posner, LL.B. ’62, is a fierce iconoclast who adorns his chambers with icons. In one corner are photographs of Justice Oliver Wendell Holmes and Judge Henry Friendly. In the opposite corner is one of Justice Benjamin Cardozo. In Posner’s words, Holmes is “the most illustrious figure in the history of American law.” Friendly was “the most powerful legal reasoner in American legal history.” Cardozo “has no peers” among twentieth-century state court judges and was “a great judge.”

It’s been a generation since Friendly died: he sat on the U.S. Court of Appeals for the Second Circuit, in Manhattan, from 1959 to 1986. The other two died long before him: Holmes served on the U.S. Supreme Court from 1903 to 1932; Cardozo made his reputation on New York State’s highest court for 18 years and then sat on the U.S. Supreme Court for six until he died in 1938. But for Posner, they remain alive through their judicial opinions as shapers of legal pragmatism, which he considers the only viable approach to judging in the United States today.

In The Metaphysical Club, Louis Menand, Bass professor of English, called the “attitude” of pragmatism “an idea about ideas.” “They are “not ‘out there’ waiting to be discovered,” Menand wrote, “but are tools—like forks and knives and microchips—that people devise to cope with the world in which they find themselves.” Pragmatism holds that people, not individuals, produce ideas, which are social, “entirely dependent, like germs, on their human carriers and the environment.” The survival of ideas, Menand wrote, “depends not on their immutability but on their adaptability.”

Posner describes legal pragmatism as a “practical and instrumental” application of that attitude. It is: “forward-looking, 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;” “empirical,” focused on facts; “skeptical,” doubtful that any decision, legal or otherwise, represents “the final truth about anything” because frames of reference change over time; and “antidogmatic,” committed to “freedom of inquiry” and “a diversity of inquirers”—in other words, to the “experimental”—because progress comes through changes in frames of reference over time, “the replacement of one perspective or world view with another.” (The italics are his.)

 His ideas about judges and judging command attention because of his authority as a thinker and a doer. His approach to law, some legal scholars contend, makes the field worthy of a Nobel Prize—which he would win, many say, by acclamation. At 77, he has been the most influential American legal scholar during his almost half-century in the academy, for all but one year at the University of Chicago Law School: in 2000, Fred Shapiro, a librarian at Yale Law School, calculated that Posner was the most cited legal scholar “of all time” by a wide margin (Holmes was third). He is also in his thirty-fifth year as a highly respected member of the U.S. Court of Appeals for the Seventh Circuit, which encompasses Illinois, Indiana, and Wisconsin. He has been among the country’s most influential judges in shaping other court decisions, measured by the number of times other judges have cited his judicial opinions.

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