In Posner's youth and in the 1960s as law clerk to William J. Brennan, he was generally counted as a
liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly
conservative bent. He encountered
Chicago School economists
Aaron Director and
George Stigler while a professor at
Stanford. and his affection for the thought of
Friedrich Nietzsche set him apart from most American conservatives. As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy." Among Posner's judicial influences are the American jurists
Oliver Wendell Holmes Jr. and
Learned Hand; he has written that "Holmes is the greatest jurist ... because the sum of his ideas, metaphors, decisions, dissents and other contributions exceeds the sum of contributions of any other jurist of modern times", and he has applied the
Hand formula in a number of his opinions.
Legal value of Constitution and Supreme Court precedents In June 2016, Posner was criticized by right-wing media organizations for a column he wrote for
Slate in which he stated, "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." He has called his approach to judging pragmatic. "I pay very little attention to legal rules, statutes, constitutional provisions. ... 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? The next thing ... is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that's actually rarely the case. When you have a Supreme Court case or something similar, they're often extremely easy to get around."
Abortion Posner has written several opinions sympathetic to
abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances. In November 2015, Posner authored a decision in
Planned Parenthood of Wisconsin v. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion."
Animal rights Posner rejects an ethic of strong animal rights on pragmatic grounds (where such an ethic posits the moral irrelevance of species membership). He recognizes the philosophical force of arguments for strong animal rights, but maintains that human intuition about the paramount value of human life makes it impossible to accommodate an ethic of strong animal rights. Posner, a self-avowed moral anti-realist, does not present his critique of strong animal rights as a deductive proof. Instead, he highlights the practical importance of intuition and emotion over abstract argument. In a 2000
Yale Law Journal book review on the title "Rattling the Cage" by
Steven M. Wise, Posner again criticized the legal notion of animal rights. In the review, Posner argues that Wise's approach, using the cognitive ability of animals compared to that of very young normal human beings as a basis for rights-worthiness, is arbitrary and in contrast with major traditional and contemporary philosophies (including the theology of
Thomas Aquinas for one and
utilitarianism for another). In addition, he points out that this basis for rights has problematic implications—including that it might soon make some computers more worthy of rights than some humans, a conclusion he calls absurd. Posner goes on to reason that granting human-like rights to animals is fraught with implications which could radically disrupt or devalue the rights of human beings. He alludes to
Hitler's fondness for animals as evidence that respect for animals and humaneness toward human beings are not necessarily associated. Arguing that the analogy of animal rights to the civil rights movement lacks imagination and is not very apt, Posner posits that animal welfare might be better protected by other legal models, one example of which would be stronger laws making animals property, since, he asserts, people tend to protect what they own. Posner engaged in a debate with the philosopher
Peter Singer in 2001 at
Slate magazine. He agrees that "gratuitous cruelty to and neglect of animals is wrong and that some costs should be incurred to reduce the suffering of animals raised for food or other human purposes or subjected to medical or other testing and experimentation," but rejects grounding this view in an ethic of strong animal rights, contending that such a premise entails conclusions inconsistent with the reality of human society and psychology. He further states that people whose opinions were changed by consideration of the philosophical arguments presented in Singer's book
Animal Liberation failed to see the "radicalism of the ethical vision that powers [their] view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees." Posner emphasizes the importance of facts over arguments in creating social change. He states that his moral intuition says that "it is wrong to give as much weight to a dog's pain as to an infant's pain," and that "[this] is a moral intuition deeper than any reason that could be given for it and impervious to any reason that you or anyone could give against it." Instead, Posner claims that "[expanding and invigorating] the laws that protect animals will require not philosophical arguments for reducing human beings to the level of the other animals but facts, facts that will stimulate a greater empathetic response to animal suffering and facts that will alleviate concern about the human costs of further measures to reduce animal suffering." on the subject." In a 2011
Yale Law Journal article, he wrote:
The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture. He describes those needs as unrelated to practical legal activity but instead as social and political. In the same article, Posner gives an excerpt of the entire citation style guide included (as an appendix) in the short manual he gives his own law clerks (whom he describes as "very smart"); the appendix is about 2–3 pages long, and he says the entire manual is about 1% as long as the Bluebook.
Drugs Posner opposes the U.S. "
war on drugs" and called it "
quixotic". In a 2003
CNBC interview he discussed the difficulty of enforcing criminal
marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at
Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana."
National security At the
Cybercrime 2020: The Future of Online Crime and Investigations conference held at
Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you." Posner also criticized
mobile OS companies for enabling
end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said.
Patent and copyright law Posner has expressed concerns, on the blog he contributed to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favor of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost of invention is high) with the software industry (where the cost of invention is relatively low). However, Posner suggested that strengthening copyright law, including a possible bar on linking to or paraphrasing copyrighted materials, may be necessary as a means to prevent what he views as
free riding on newspaper journalism. His co-blogger
Gary Becker simultaneously posted a contrasting opinion that while the Internet might hurt newspapers, it will not harm the vitality of the press, but rather embolden it.
Police recording In 2011, a three-judge panel on the 7th Circuit was weighing a challenge to the Illinois Eavesdropping Act, which barred the secret recording of conversations without the consent of all the parties to the conversation. At issue was the constitutionality of the Illinois wiretapping law, as it prevented the filming of arrests that took place in public. Posner interrupted the
ACLU after just 14 words, stating, "Yeah, I know. But I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police" and that "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers. [...] I'm always suspicious when the civil liberties people start telling the police how to do their business." The 7th Circuit upheld the challenge, 2–1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.
Prisoners In a dissent from an earlier ruling by his protégé
Frank Easterbrook, Posner wrote that Easterbrook's decision that female guards could watch male prisoners while in the shower or bathroom must stem from a belief that prisoners are "members of a different species, indeed as a type of
vermin, devoid of
human dignity and entitled to no respect. ... I do not myself consider the 1.5 million inmates of American prisons and jails in that light."
Race and public education Posner's views of public education policy are informed by his view that groups of students differ in intellectual ability, and therefore, that it is faulty to impose uniform educational standards on all schools. His view in this regard is undergirded by his view that different races differ in intelligence. (However, Posner says that he thinks it is "highly unlikely" that these differences are rooted in genetics, rather than environment.) In a blog post, Posner wrote, "I suggest that the only worthwhile reforms of teacher compensation are raising teacher wages uniformly, providing recognition and modest bonuses for outstanding teachers, and increasing hiring standards." In the same post, he wrote, "I am not clear what we should think the problem of American education (below the college level) is. Most children of middle-class ... Americans are white or Asian and attend good public or private schools, usually predominantly white. The average white IQ is of course 100 and the Asian (like the Jewish) almost one standard deviation higher, that is, 115. The average black IQ is 85, a full standard deviation below the white average, and the average Hispanic IQ has been estimated recently at 89. Black children in particular often come from disordered households, which has a negative effect on ability to learn and perhaps indeed on IQ. ... Increasingly, black and Hispanic students find themselves in schools with few white or Asian students. The challenge to American education is to provide a useful education to the large number of Americans who are unlikely to benefit from a college education or from high school courses aimed at preparing students for college."
Same-sex marriage In September 2014, Posner authored the opinions in the consolidated cases of
Wolf v. Walker and
Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that
Indiana and
Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling. Posner wrote the opinion for the unanimous panel, finding the laws unconstitutional under the
Equal Protection Clause. The Supreme Court then denied a writ of certiorari and left Posner's ruling to stand.
Torture When reviewing
Alan Dershowitz's book,
Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Posner wrote in the September 2002
The New Republic, "If torture is the only means of obtaining the information necessary
to prevent the detonation of a nuclear bomb in
Times Square, torture should be usedand will be usedto obtain the information.... No one who doubts that this is the case should be in a position of responsibility."
Voter identification laws In 2007, Posner wrote the majority opinion upholding Indiana's photo identification law in the
Crawford v. Marion County Election Board case. He wrote that "absence of prosecutions" for voter fraud is explained in part by "the extreme difficulty of apprehending a voter impersonator," and that such impersonators are "almost impossible to catch without a voter ID requirement". The law was subsequently upheld at the
United States Supreme Court. In 2013, Posner disavowed support for the ruling due to concerns about
voter suppression caused by the law. He stated that judges "weren't given the information that would enable that balance to be struck" between preventing fraud and protecting voters' rights. In 2014, Posner wrote a 30-page dissent opposing the upholding of a Wisconsin voter ID law. ==Judicial career==