Bench Memos

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Judge Posner’s How Judges Think—Part 5


Chapter 10 of Judge Posner’s How Judges Think is titled “The Supreme Court Is a Political Court,” and Posner argues in favor of the proposition in the chapter title.  But in so doing, he renders the seemingly significant and surprising proposition entirely vacuous—devoid of any meaningful content.  Consider:


Posner argues that the Supreme Court is inescapably a political court when it deals with constitutional issues.  He intertwines two arguments.  The first argument is that a constitution “deal[s] with fundamental issues” that “are political issues:  issues about political governance, political values, political rights, and political power.”  (Emphasis in original.)   “Political issues by definition,” he asserts, “cannot be referred to a neutral expert for resolution.”  This argument is simply incoherent.  By the same illogic, Posner could argue, say, that legal questions dealing with Department of Agriculture manure regulations are manure issues—issues about manure governance, manure values, manure rights, and manure power—and that manure issues by definition cannot be referred to a non-manure expert for resolution.


Posner’s second argument is coherent, but doesn’t come anywhere close to establishing (either by itself or together with his first argument) his proposition that the court is, in ordinary parlance, necessarily a “political” court when it deals with constitutional issues.  Posner argues that constitutional provisions “tend … to be both old and vague” and that the “political preferences [of justices] are [therefore] likely to determine how they vote.”  There is, of course, always a danger that justices will indulge their political preferences.  That danger is compounded when justices subscribe to a theory of constitutional decisionmaking (e.g., living constitutionalism) that invites them to indulge those political preferences, and, as I’ve extensively documented, it would seem that that danger has frequently been realized.  But Posner offers no evidence for his assertion that each justice’s political preferences are “likely” to determine how that justice votes, nor does he recognize that even the threshold of likelihood falls short of establishing that political decisionmaking is inevitable.


It gets worse.  Later in the chapter, Posner asserts that “discrepancies between [a justice’s] personal and judicial positions usually concern rather trivial issues, where the judicial position may be supporting a more important, though not necessarily a less personal, agenda of the Justice.”  Further, Posner maintains, a justice’s “doctrinal beliefs [on constitutional meaning] are as personal or political as the desire for a particular outcome; they are not the products of submission to the compulsion of the constitutional text or of some other conventional source of legal guidance (though the judge many think they are) because there are no such compulsions in the cases that I have been discussing” (i.e., cases that Posner considers typical of constitutional cases).  (Emphasis added.)  Where there are discrepancies between a justice’s personal and judicial positions, the justice is unconsciously “trad[ing] a minor preference for a major one.”


It simply isn’t true that discrepancies between, say, Justice Scalia’s personal and judicial positions “usually concern rather trivial issues.”  Take the issue of abortion.  Let’s assume, as Posner does, that Scalia’s personal position would favor substantial restrictions on abortion.  Scalia, in arguing that Roe v. Wade was wrongly decided and should be overturned, has never taken the position that the Constitution should be construed to prohibit permissive abortion laws.  On the contrary, his position is that the Constitution is substantively neutral on the question of abortion—and that state legislators should generally be free to permit or proscribe it.  Of course, it is true that Scalia’s judicial position, if adopted, would make it possible for a legislature to implement his putative personal views.   But that does not alter the fact that there is a huge gap between his personal and judicial positions.  (I develop this elementary, but somehow widely misunderstood, point in this essay.)  Ditto for Scalia on an endless list of issues like the death penalty, pornography, criminal procedure, and same-sex marriage.


More importantly, Posner’s dogma that a doctrinal position on a vague constitutional provision is necessarily “as personal or political as the desire for a particular outcome” renders tautological and meaningless his proposition that the Court is inescapably a “political” court (as well as his taunt that only “the self-deluded believe that ‘ideological commitments’ play a significantly smaller role in the decisions of legalists … than in those of” other judges).  For whenever a legalist’s position is determined by legalist materials, Posner’s response is that the legalist’s adoption of his legalist approach was itself a political (or ideological) decision.


At bottom, Posner’s charge that the Supreme Court is necessarily a “political” court is empty and deceptive wordplay.


(Here are my previous posts in this series:  Parts 1, 2, 3, and 4.)

Tags: Whelan


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