I’ve recently read (though I may still be digesting) Seventh Circuit judge Richard A. Posner’s newest book, How Judges Think. I hope to offer some commentary on the book in a series of posts in coming days. In this post, I aim to provide a neutral summary of Posner’s central arguments. (The book—I have the uncorrected-page-proofs version—runs 377 pages, so my brief summary is necessarily selective.)
Posner’s stated goal is 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.” 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.
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 significant “internal constraints” on judging. Legalism—the concept that “law is distinct from politics and policy [and] is the realm of rules, rights, and principles”—gives judicial decisionmaking the false “appearance of judicial rigor.” But, Posner argues, 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.
The Supreme Court, Posner argues, is a “political” court, especially when deciding constitutional issues, because a constitution deals with “political issues: issues about political governance, political rights, and political power.” “Political issues by definition cannot be referred to a neutral expert for resolution.” The Court is “awash in an ocean of discretion,” as illustrated by the issue in Roper v. Simmons—whether execution of murderers who were 17 at the time they committed murder violates the Eighth Amendment.
In my coming posts, I’ll offer some critical commentary on these and related arguments.