Posner struck down marriage bans and abortion limits, extended LGBT protections

Proposal to sell parental rights dampened his Supreme Court prospects

Richard Posner wrote a 2014 decision striking down same-sex marriage bans in Wisconsin and Indiana, in which he criticized Wisconsin’s appeal to tradition, noting such historically “bad traditions” as “cannibalism, foot-binding, and suttee.” He also rejected the argument that opposite-sex couples need inducements to marry for the sake of their children.

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry,” Posner wrote in that decision. “Go figure.”

In 2015, his majority opinion struck down Wisconsin’s requirement that abortion providers have admitting privileges at a nearby hospital. “The feebler the medical grounds (in this case, they are nonexistent), the likelier is the burden on the right to abortion to be disproportionate to the benefits and therefore excessive,” he wrote.

Posner was in the majority in a seminal 2017 ruling that found the 1964 Civil Rights Act also barred discrimination against lesbian, gay, bisexual and transgender workers. “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman,” Posner wrote.

Posner’s opinions have been cited extensively in textbooks that have educated generations of lawyers. The University of Chicago Law School, where he served as a senior lecturer and one of his sons, Eric Posner, is a professor, said Posner died Tuesday. He was 87.

Over a nearly 40-year career on the Chicago-based 7th U.S. Circuit Court of Appeals, Posner developed a reputation as a strong and clear writer and tough questioner. He eschewed legal jargon. His opinions could be acerbic. Unlike many federal judges, he wrote his own opinions — thousands of them — instead of relying on law clerks. He was also known to conduct his own internet research about a case, rather than relying solely on the court record.

Posner was a leading figure in the use of economic theory to analyze legal rules and institutions. His 1973 textbook, Economic Analysis of Law, was foundational and remains in print today.

His economic focus could prove awkward, however, like when he proposed allowing biological mothers to sell their parental rights at market prices as a way of eliminating adoption shortages, reducing illegal transactions and channeling money to those who need it. Such provocative ideas dampened his prospects for a Supreme Court nomination.

Though he was appointed to the bench in 1981 by Republican President Ronald Reagan, he was no rubber stamp for legal outcomes favored by conservatives. Instead, he described his approach to judging as pragmatic. “I pay very little attention to legal rules, statutes, constitutional provisions,” he told The New York Times in 2017. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

Outside the court, Posner authored hundreds of articles and dozens of books about subjects as varied as President Bill Clinton’s affair with Monica Lewinsky and intelligence reform following the attacks of 9/11.

Posner was also unabashed in his opinions about the nation’s highest court, even as he sat under it. In 2016, he called the Supreme Court “highly politicized,” saying that “probably only” a couple of the justices were qualified, and even they were “not great.” He sparred with the late Justice Antonin Scalia and called Chief Justice John Roberts’ dissent “heartless” when the court legalized same-sex marriage in 2015. He retired from the appeals court abruptly two years later, citing clashes with fellow judges over what he considered unfair treatment of litigants acting as their own attorneys.

As a legal scholar, Posner was uniquely “prolific, influential, and endlessly curious,” University of Chicago Law School Dean Adam Chilton said in a statement. “He was a giant whose influence on our legal system, the field of law and economics, and on our law school cannot be overstated,” Chilton said.