Judges Excoriating Other Judges for Using Terms of Art They Don’t Like: The Comments of Richard Posner


Did you ever hear of the expression, “Do as I say, not as I do”? I thought of that when I read Judge Richard Posner’s recent criticism of the use of language by other judges. In United States v. Dessart, he agreed entirely with the majority but filed a concurring opinion because he did not like some language that, oddly enough, Judge Posner has used for years.

The issues were straightforward in the Dessart case, and Judge Diane S. Sykes wrote an opinion that is a model of judicial clarity and conciseness. Her first paragraph explains it all:

From his home in tiny Reedsville, Wisconsin, Shontay Dessart manufactured and sold products containing the active chemical ingredients in numerous prescription drugs, offering them for sale online with the disclaimer “for research only” to evade the oversight of the U.S. Food and Drug Administration. He was convicted of violating the Food, Drug, and Cosmetic Act, 21 U.S.C. § 331, with the intent to defraud or mislead the agency, which converted his violations from strict-liability misdemeanors into specific-intent felonies, id. § 333(a)(2). On appeal Dessart contends that (1) the FDA’s investigator lied in procuring a search warrant and the warrant otherwise lacked probable cause; (2)the government’s evidence was insufficient to prove that he acted with deceptive intent; and (3) the district court erred in instructing the jury on the definition of “prescription drug.” Long story short: Dessart lied, the investigator didn’t, the warrant was backed by ample probable-cause, and there was no instructional error. We affirm.

Posner’s concurring opinion in Dessart begins by announcing he has “reservations” about “the verbal formulas in the majority opinion.” He does “not criticize the majority for reciting them, because they are common, orthodox, even canonical,” but (and, here, it sure looks like he’s criticizing), “they are also inessential and in some respects erroneous” and “ripe for reexamination.”

He starts off with “great deference,” which comes from a Seventh Circuit case, United States v. McIntire. Earlier, Posner had quoted McIntire with approval or joined opinions doing so. That term of art, in turn, follows the U.S. Supreme Court. It’s a straightforward term meaning in this case that the defendant has a heavy burden to overturn the judge’s decision to issue a search warrant. It is hardly “inessential” or “erroneous.” Courts have consistently ruled, “the magistrate’s determination should be overturned in this case only if there is no substantial basis for concluding that probable cause existed.” Simmons v. Poe, 47 F.3d 1370, 1380 (4th Cir. 1995).

Posner also finds “abuse of discretion” to be “opaque.” “If the appellate court is persuaded that the trial court erred in a way that makes the trial court’s decision unacceptable, it reverses. What has discretion to do with it?” He might have mentioned that a quick search in a database of case law will show that Posner himself has used the term in nearly 200 different cases and never once (no surprise here) did he criticize himself for using that term.

If you search for “abuse of discretion” under statutes and court rules, you will also find the term used thousands of times. It you limit your search to federal statutes and rules, you will still find the term used nearly 600 times. See, for example, 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful . . . conclusions found to be . . . an abuse of discretion . . . .”). The Code of Federal Regulations uses the term “abuse of discretion” nearly 400 times.

It is hard to criticize a court for using the specific term that the statute or rule uses. One would think that Posner should write a letter to his senator complaining that federal statutes use “opaque” language. The senator will have more input into changing a statute than Posner’s colleagues on the Seventh Circuit.

Judge Posner also complains about the terms “actual guilt” and “actual innocence.” He asks, what do “the terms ‘actual guilt’ and ‘actual innocence’ mean that ‘guilt’ and ‘innocence’ without the adjective ‘actual’ do not mean?”

Actually, Posner answered that question in earlier opinions he authored. If the court or jury finds the defendant not guilty, that simply means that the prosecutor did not prove its case. The court or jury may have rendered the verdict because the court had to exclude a crucial piece of evidence, or because the conviction violated double jeopardy. In such cases, the defendant is not “actually” innocent, which becomes crucial for many courts if the defendant seeks to sue his lawyer for malpractice.

Posner carefully explained the distinction in an opinion he wrote in 2005:

Under Illinois law, as that of other states, a criminal defendant cannot bring a suit for malpractice against his attorney merely upon proof that the attorney failed to meet minimum standards of professional competence and that had he done so the defendant would have been acquitted on some technicality; the defendant (that is, the malpractice plaintiff) must also prove that he was actually innocent of the crime.

It is easy to see this distinction compared to civil malpractice cases. To quote Posner, this “’actual innocence’ rule differs from the rule applicable to malpractice arising out of civil matters. There the only requirement is, as in all tort cases, that the plaintiff prove he was injured by the defendant’s negligence. If the malpractice involved the handling of a lawsuit, all he has to prove is that he would have won had it not been for the lawyer’s negligence.”

Posner wrote Winniczek v. Nagelberg, yet he neglected to mention that when he castigated that language in Dessart. Is Posner now sorry that he used the term earlier, or does he think it was correct for him to use it then but not for a court to use it now? If so, what is the distinction? When did Judge Posner decide that the courts should not use such terms? Did this conclusion come to him all of a sudden, like Paul’s conversion on the road to Damascus, or did it dawn on him slowly over time?

“Actual innocence” is also a term used in habeas cases. As the Seventh Circuit explains—again in another case where Posner himself uses the dreaded term “actual innocence”—if the defendant “is actually innocent of the crime of which he was convicted, as distinct from his having been the victim merely of a procedural irregularity that would justify at most a new trial,” and only “a person who is actually innocent should be allowed to file a section 2241 [habeas] petition at any time, subject to the limitations in section 2244.” Yes, Posner actually said that.

Perhaps Posner is not objecting to the use of language but is objecting to the U.S. Supreme Court cases that create such terms. He says he is “objecting to propositions enunciated by the Supreme Court. That may seem impertinence on my part, forcing me to invoke the old proverb that ‘a cat may look at a king,’ one meaning of which is that an inferior is or should be allowed to criticize a superior.”

Yes, Posner may criticize Supreme Court holdings; it is a free country, after all. But that objection has nothing to with the use of language. He tells us that he objects to the Supreme Court decision ordering lower courts to defer to the magistrate issuing the warrant. He objects to the rule, not the label for the rule. Yet, as he emphasizes at the very beginning of his concurrence, “I agree with the decision but have reservations about some of the verbal formulas in the majority opinion.”

It seems that he does not object to “great deference” because of style but because of substance. It may seem impertinent on my part to criticize this well known judge, but I take refuge in that the old proverb that “a cat may look at a king.”

When the ABA Journal published a story about Judge Posner’s criticism of language, some of the remarks in the comments section were decided unfriendly. These people also were taking benefit of the cat looking at the king. One commentator said, “Posner is being pedantic and faux smart. The words and phrases to which he objects have the purpose of framing the kind of review being performed or the argument being presented.” Another added, “In many situations, the language about which he complains is straight out of applicable statutes. Judges should not, in the name of ordinary language, ignore the legislature’s statutory language.” Another, unkind comment said, Posner “may be one of the most verbose morons who ever lived.” Others defended Posner, one calling him, “one of the most highly regarded judges ever to sit on the federal bench”.

Posner concluded in Dessart, “Everything judges do can be explained in straightforward language—and should be.” A notable sentiment and proper goal, which eluded Posner said a few weeks later. I quote his words at length, with no internal ellipses so we can see the straightforward language Posner used:

I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.

He must have known what he was saying when he wrote and posted those words for Slate.com. In fact, he made similar comments a few months earlier, in March, in a Dallas newspaper interview that is not as widely reported.

Posner’s lengthy remarks in Slate.com received a lot more publicity and with the publicity came substantial criticism. One uncharitable commentator said, “Geez, that old goat has an opinion about everything. He needs to retire already.” Another responded, “As someone who spent 10 years voluntarily putting my life at risk to support and defend the Constitution I find Posner’s comments stupid and insulting.”

Posner later apologized for using language “that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law—that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law. That was not my intention, and I apologize if carelessness resulted in my misleading readers.” He concluded, “That’s all I meant to say, and it is by no means original with me. I regret not having been clearer.”

I guess his writing in Slate.com was a bit opaque.

Posted in: Courts and Procedure

Tags: Legal