Richard A. Posner’s The Federal Judiciary—Part 2

by Ed Whelan

See Part 1.

“The dominant theme” of Richard Posner’s new book, he tells us, is “standpattism—more precisely, the stubborn refusal of the judiciary to adapt to modernity” (p. 376). But “the stubborn refusal of the judiciary to adapt to modernity” turns out to be a vapid umbrella label for just not embracing Posner’s positions. Consider:

1. Posner complains that traditional modes of judicial decisionmaking are “excessively backward-looking” (p. x) because they focus heavily on legal text and precedent. Instead, judges should simply decide what policy is best and work to find a path to get there:

My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.

Further: “The time to look up precedents, statutory text, legislative history, and the other conventional materials of judicial decision making is after one has a sense of what the best decision should be for today’s society” (p. 82 (emphasis in original)).  

Or, as Posner put it recently, most legal “technicalities are antiquated crap.” Far better for judges to indulge “common sense” than to have a decision “supported by ‘reason,’ whatever that means exactly.”

So, in Posner’s view, laws are obstacles for the pragmatist judge to work his way “around by hook or by crook.”

If Posner’s own description of his pragmatism doesn’t suffice to discredit it, I’ll refer readers to my review of Posner’s How Judges Think (especially Parts III and IV) for my critique. I’ll also note (as I spelled out in this post) that his “common sense” leads him in this new book to argue that Plessy v. Ferguson (1896) (allowing racial segregation in public facilities) and Korematsu v. United States (1944) (upholding internment of Japanese Americans) were “‘right’ for [their] time” and that Buck v. Bell (1927) (allowing the involuntary sterilization of supposedly “feeble-minded” individuals) was a model of pragmatic reasoning. So perhaps having judges adapt their decisions to the times isn’t as rosy a prospect as Posner’s “forward-looking” rhetoric might have you think.

But whatever your views on judicial pragmatism, for purposes of this post I’ll simply observe that it’s quite deceptive to cast the jurisprudential battle between pragmatism and legalism as a battle over whether or not the judiciary should “adapt to modernity.”

Posner heaps special scorn on the originalist version of legalism. “How,” he asks, can eighteenth-century thinkers be thought to have foreseen twenty-first century conditions?” (p. 30). The question is an obtuse one. The Framers set up a system of representative government that has broad play to adapt to changing conditions, and they carved out specific protections to guard against known and feared abuses. In addition, they set up a process by which the Constitution could be (and has been) amended. Together these features make it unnecessary for the Framers “to have foreseen twenty-first century conditions,” and I’m not aware of anyone who advocates originalism on the assumption that the Framers did have such foresight.

2. Posner’s first item of complaint, believe it or not, is that hardly any judges “tell their law clerks to call them (the judges, that is) by their first name” (p. 4). This, he says, is somehow “illustrative of the general problem of inefficient judicial management of staff.”

Uh, okay. Whatever you say, Dick! (Unlike many twenty-somethings speaking to much older bosses, Posner’s clerks might find it especially apt to call him by his first name.)

3. Posner says that an “important reform, though hopeless, would be to require the judges to write their own opinions.” But, wait: Much as I might have some sympathy for that proposal, isn’t that backward-looking? Posner acknowledges that “nowadays U.S. presidents and other prominent people usually delegate the writing of their speeches to anonymous staff.” Why doesn’t he want judges to “adapt to modernity” in this respect?

Posner gives some reasons (the “principal benefit” is to “winnow out the weakest judges”). But it would seem that his desire to have the judiciary “adapt to modernity” is malleable enough to accommodate whatever he favors.

4. Posner complains:

[A] number of common practices of federal appellate courts could easily be abandoned and should be. One is a court’s announcing in advance (often months in advance) who the members of a panel will be that will hear a particular case. Such a preannouncement is likely to cause the lawyers in the case to focus on the particular leanings of the panel members . . . .” [P. 226 (emphasis added)]

What? This struck me as an inaccurate description of current practices, so I doublechecked with a few friends who are appellate experts. They confirm that no federal appellate court announces “months in advance” who will be on a panel (though the D.C. Circuit did so until 2014). According to this Mayer Brown analysis from 2015, three circuits (including Posner’s Seventh) reveal the panel on the day of argument, six do so a week or so before, two do two weeks before, and two do a month before. No court typically announces the panel before submission of the briefs, which would present the prime opportunity “to focus on the particular leanings of the panel members.”

5. Posner asserts that the Supreme Court’s “refusal even to experiment [with televising its hearings] casts gave [sic; read “grave”] doubts on its competence, and specifically on the managerial ability of the Chief Justice” (pp. 190-191). But Posner reveals a page later that his own court, for which he was chief judge from 1993 to 2000, doesn’t televise its hearings and that the current chief judge only very recently appointed a committee to look into the question. So why doesn’t Posner direct his suggestion of incompetence, and failure to adapt to modernity, against himself?

6. Displaying his supposed common sense, Posner argues that a “more realistic alternative” to term limits for judges

might be to require every judge—including the Justices of the Supreme Court—upon reaching eighty or eighty-five to have a mental-acuity test, geared to the type of oral and written materials germane to the judicial task at the particular judge’s level.

A moment’s reflection might have led Posner to realize how unrealistic such a proposal is. Does he really imagine that it would be possible to design and implement such a test—and to dislodge justices and judges from their seats on the basis of such a test—in a way that would be accepted as legitimate?

7. Given his incessant spewing of proposals, it’s no surprise that Posner can’t keep them consistent. He argues, for example, that “every appellate judge,” including “the eminences of the Supreme Court,” “should have trial-court experience as a judge.” Maybe so. But how can he reconcile that position with his separate position that “[a] brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice”? [7/24 addendum: Contrary to what I initially suggested, Posner's two positions are reconcilable, as Posner, rather than insisting that appellate judges have trial-court experience before becoming appellate judges, simply wants them "to hear cases in the district court" if they haven't previously had trial experience. I think that the idea of tossing into a trial court a businessman or politician or teacher who has no background in civil procedure or evidence is loopy, but my charge of a flat inconsistency between Posner's two positions was mistaken.] 

* * *

Some of the passages I’ve criticized in this post aren’t particularly significant in and of themselves, but they’re illustrative of defects that pervade Posner’s book. I don’t mean to deny that Posner’s stew has a few tasty morsels here or there, but rare will be the reader who will have the appetite to hunt for them.

More to come.

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