Bench Memos

NRO’s home for judicial news and analysis.

Judge Posner’s How Judges Think—Part 3


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.”


Bottom line:  I’m not persuaded that Posner has demonstrated the inadequacy of legalism.

Tags: Whelan


Subscribe to National Review