A Tale of Two Judges: Posner vs. Flaum

Belleau v. Wall is an important case handed down last month about whether requiring a convicted sex offender to wear a GPS-tracking ankle bracelet violates his Fourth Amendment rights or the Ex Post Facto Clause. The circuit courts are split on these issues (hello, Supreme Court?), but my own focus is elsewhere: on the style split between Judge Posner, the iconoclast who wrote the opinion, and Judge Flaum, the traditionalist who penned a concurrence.

(I should point out that the Seventh Circuit issued the opinion a mere three weeks after the oral argument!)

Both judges found the ankle bracelet constitutional, and for mostly the same reasons. I wouldn’t be surprised to learn, in fact, that Judge Flaum wrote a concurrence because he objected to the style of the opinion and not its reasoning.

Judge Posner’s opinion screams “Posner” from the first page. You’ll find the familiar frank expressions of curiosity about the facts (“Oddly, he was given only a year in jail and probation . . . .”), the telegraphed messages for the reader (“let’s recapitulate,” “Readers of this opinion who are parents of young children should ask themselves . . . .”), and the forays into “real life” – for instance, the benign uses of GPS for nervous parents and wayward hikers. Judge Posner even lets us know that “one of the members of the appellate panel” (I wonder who?) visited Family Watchdog and learned that several registered sex offenders live on his street.

With the case hinging on an ankle bracelet, Posner kindly includes a photo of one in his opinion. How many judges would have thought to do that? You’ll also learn that the bracelets are waterproof, allowing the defendant to bathe and shower unimpeded. Indeed, you’ll be exposed to a slew of secondary sources – everything from the Journal of Threat Assessment & Management on recidivism rates to a New England Journal of Medicine article on the sex habits of elderly men. Sometimes the opinion reads a bit like a term paper.

Other treats: Light transitions like “but” and “say” and “so.” Contractions (“[T]he plaintiff can’t be thought just a harmless old guy.”). An exclamation point. Clever rhetorical flourishes (“For it’s not as if the Department of Corrections were following . . . peeking . . . trailing . . . videotaping . . . and through such snooping learning . . . .”). And several provocative analogies, some more convincing than others, between the GPS tracking of released defendants and the enhanced police presence in drug-infested neighborhoods, the placing of hidden cameras in traffic lights, and the posting of speed limits.

What you won’t find much of is precedent. When Judge Posner does cite cases, they either are part of a string or are reduced to a pithy parenthetical. He would no doubt argue, of course, that he captures the essence of the case law in his expansive discussion of the facts.

Judge Flaum’s concurrence, by contrast, is cast a bit sternly in the traditional mold. Substance-wise, it’s dutiful, thorough, and exhaustive, filled with citations, quotations, and discursive analyses of case law. Style-wise, it’s heavy on “hence,” “however,” “rather,” “nevertheless,” and the royal “one,” and it’s light on short sentences, examples, and bridge-building transitions. There’s no identifiable voice, and perhaps there need not be.

The putative author rarely offers fresh commentary on the law or the facts, despite the occasional “I conclude” or “I believe.” The analysis is perfectly comprehensible, but you’ll search in vain to discover an evocative turn of phrase or an insight that a judge might have gleaned from decades on the bench. In fact, the concurrence features many of the traits that Judge Posner has criticized in his own musings on judicial opinions. It slogs through a “special needs balancing inquiry” that’s a bit of a grind. And later, toward the end, it marches through one of those multi-factor balancing tests that Judge Posner disdains, in this case the five Mendoza-Martinez factors for whether a statute is punitive – factors that, Judge Flaum concedes, are “neither exhaustive nor dispositive” but “merely supply useful guideposts.” Which is perhaps why it takes Judge Posner two sentences, not two pages, to find that the GPS bracelet is not a true penalty.

All that said, Judge Flaum’s concurrence does everything that our system could ask a judge to do. And perhaps that’s enough.

There’s a reason that the Judge Posners of the world are more likely than the Judge Flaums to be described as “great opinion writers.” “Great” for whom and when and why, of course, is another question entirely.