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How Judge Posner Thinks Judges Should Think
An unpersuasive case for pragmatism.


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In his new book, How Judges Think, Seventh Circuit judge Richard A. Posner states that he aims to offer a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases” — that is, in those “rather frequent” instances in which judges can’t “just apply rules.” But his book, in the end, offers much less insight about how judges actually think than about how Judge Posner thinks judges should think.

I.
In developing his “basic model,” Posner presents nine “overstated or incomplete” theories of judicial behavior; explores various factors (such as power, respect, leisure, and the intrinsic satisfaction of the judicial craft) that motivate judges as “labor-market participants”; and discusses the role that preconceptions and ideological world views play in judicial decisionmaking.

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In elaborating his model, Posner looks at “external constraints” on federal judges (such as desire for promotion, concern for reputation, and the possibility of political retribution) and finds those constraints to be weak. Nor does he find “internal constraints” on judging to be significant. Legalism — the concept that “law is distinct from politics and policy [and] is the realm of rules, rights, and principles” — gives judicial decisionmaking the “appearance of judicial rigor.” But, Posner argues, that appearance is false, as the interpretive rules that various versions of legalism (strict construction, textualism, originalism) adopt cannot “be derived by reasoning from agreed-upon premises” but instead depend on “choices that entail the exercise of legislative-like judicial discretion.”

Pragmatic adjudication, which has as its core “heightened judicial concern for consequences and thus a disposition to base [judicial] policy judgments on them rather than on conceptualisms and generalities,” is therefore inescapable. “Sensible pragmatic judges,” unlike their shortsighted brethren, will consider “systemic, including institutional consequences.” They, in contrast to legalists, are “less interested in whether the facts of a case bring it within the semantic scope of the rule agreed to govern the case than in what the purpose of the rule is — what consequences it seeks to induce or block — and how that purpose, those consequences, would be affected by deciding the case one way or the other.” Pragmatism won’t “grind[] out certifiably correct answers to legal questions”; it “sets no higher aspiration for the judge than that his decisions be reasonable in light of the warring interests in the cases, although a reasonable decision is not necessarily a ‘right’ one.” Pragmatism can’t be banished, and efforts to banish it would “make judges even less candid than they are” and would inadvertently give greater play to judges’ personal and political preconceptions in cases involving discretion.

II.

Does Posner succeed in his stated goal of providing a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”? I certainly don’t think so. As Posner himself acknowledges, his “nine overstated or incomplete” theories of judicial behavior — attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalistic — “make for an unwieldy analytic apparatus.” That analytic apparatus becomes even more unwieldy when Posner adds in his insights on the various factors that motivate and constrain judicial decisionmaking. The fact that Posner’s approach is highly theoretical and abstract, not empirical, compounds the problem. In the end, the reader is left with a hodgepodge of considerations — an interesting hodgepodge, but a hodgepodge nonetheless — that might or might not affect how various judges decide various cases.

III.

Judge Posner’s argument that judges should be Posnerian pragmatists hinges on his claim that “the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide.” This claim, as I understand it, in turn rests on three underlying contentions: (1) the interpretive rules that legalists (or, if you prefer, formalists) adopt cannot in fact “be derived by reasoning from agreed-upon premises” but instead depend on “choices that entail the exercise of legislative-like judicial discretion”; (2) even these interpretive rules will leave lots of cases without “right” answers; and (3) these interpretive rules will yield some “right” answers that we reject as unacceptable. Let me address these one by one.

First: I readily concede that the interpretive rules that legalists adopt cannot all be derived, with mathematical precision, “by reasoning from agreed-upon premises.” Given that academic philosophers might have difficulty agreeing, say, on premises from which one could reason to the conclusion that Judge Posner really exists, the standard that Posner would hold legalists to seems an impossible one to reach. But is that the proper standard? And is the exercise of freewheeling “legislative-like judicial discretion” the only alternative? Why isn’t it coherent for legalists to advocate for particular interpretive rules on the grounds that those rules are most faithful to text and history, or to separation-of-powers principles, or to the properly limited role of the judiciary? I don’t doubt that “discretion” will be involved in determining which interpretive rule is best, and I don’t doubt that there will sometimes be room for reasonable disagreement. But I don’t think that the result is open-ended “legislative-like judicial discretion,” and I don’t see why the set of interpretive rules available to legalists needs to be as limited as Posner maintains.

Second: Only after the full set of interpretive rules available to the legalist is established is it possible to try to demonstrate that those rules would leave cases without “right” answers. Given the availability of default canons of construction, it’s not obvious to me that there would be such cases. (At one point, Posner seems to argue that because deferential appellate review might leave in place opposite rulings below, “it must be that legalism … countenances a great deal of error.” But surely he doesn’t mean to imply that legalists must support de novo appellate review of all questions. The fact that there is a right appellate answer in the cases he posits — uphold both rulings — means that legalism is determinate in those cases.)

Third: Posner offers a laundry list of unacceptable results that would flow from “strict construction.” An aside: I’m not aware that any legalist these days argues for strict construction. As Justice Scalia has put it (in A Matter of Interpretation), “I am not a strict constructionist, and no one ought to be.… A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” It’s rather strange that Posner’s refutation of legalism has strict construction front and center, and it’s also surprising that he confuses “original meaning” with the “original understanding” variant of originalism.

Back to the point: Let’s assume that each legalist approach, if it were adopted today and employed to overturn contrary precedents, would yield some results that we find unacceptable (and let’s set aside any questions about what Posner’s standard of acceptability is). Why would that amount to an indictment of legalism? Our perception of acceptability is surely path-dependent: the existence of wrong, but long-entrenched, precedents makes us more likely to see their reversal as problematic. But that fact says nothing about the validity of a legalist approach ex ante (nor about the world that would have resulted if that approach had been consistently followed). Nor is it obvious why legalists should be compelled to seek the reversal of all wrong precedents. As Scalia has explained, “Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.… Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”

IV.
Judge Posner’s primary argument for judicial pragmatism is that “there is no alternative” to it. As discussed in the preceding section, I am not persuaded that Posner has demonstrated the inadequacy of legalism.

Posner’s secondary argument for judicial pragmatism is that it produces “better consequences” than legalism. I am not particularly interested in contesting Posner on this ground. As Posner suggests, it would be curious to rest the defense of legalism on pragmatist grounds. At bottom, the only legitimate test of a legalist approach is whether it produces legally right results, not whether those results are, in the judgment of some grand social engineer, better for society than what pragmatism would yield.

That said, I would like to call into question briefly whether pragmatism can really be expected to yield the favorable consequences that Posner claims.

First, as a simple matter of institutional competence, I question whether the typical federal judge is able to weigh the relative social consequences of different possible rulings. I don’t mean this comment to slight the intellect or ability of judges; I mean, rather, to recognize the inevitable narrowness of their training and the limited empirical perspective that they have on the real world. It will be rare that any judge will have the remarkable breadth of learning and undeniable brilliance that Posner has, and it’s far from clear that even a Posner can handle the challenges that pragmatism would place on him.

Second, as Posner acknowledges, different judges “will weigh consequences differently depending on a judge’s background, temperament, training, experience, and ideology” — and, of course, intellect. Posner’s criticism of Justice Breyer (in a different part of his book) is particularly telling, as Breyer, an avowed pragmatist and an extremely bright man, would seem to be Posner’s closest intellectual soulmate in the federal judiciary:

“[L]aw” for Breyer, or at least constitutional law, seems more his own creation than a body of thought external to his personal views. I am tempted to describe him as a bricoleur — one who uses “the instruments he finds at his disposition around him, … which had not been especially conceived with an eye to the operation for which they are to be used and to which one tries by trial and error to adapt them, not hesitating to change them whenever it appears necessary.” [Quoting Derrida] … Such eclecticism leaves a judge with complete freedom to indulge his political instincts — liberal, conservative, or moderate — as it can accommodate any result that a judge might want to reach for reasons he might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion in the public sphere.

Posner calls Breyer an “intermittent pragmatist whose pragmatism is heavily leavened with liberal political commitments,” but it is difficult to see how Posner’s criticisms of Breyer don’t apply to Posner himself and to any pragmatist.



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