In my previous posts (parts 1, 2, 3, 4, and 5), I’ve addressed Judge Posner’s central arguments in How Judges Think. In this post, I’d like to draw attention to a handful of lesser—but revealing—assertions that he makes:
1. On the first page of his introduction, Posner refers to the “startling (to the naïve) right turn by the Supreme Court” in its 2006-2007 last term, a turn that “resulted from the replacement of a moderately conservative Justice (O’Connor) by an extremely conservative one (Alito).” It’s bad enough that newspapers routinely use reductionist political labels to describe the Court and its justices. I found it even more startling that an esteemed jurist would do so. Except, of course, that I later discovered (as I discussed in Part 5) that Posner actually maintains that when justices decide most constitutional issues, they are merely imposing their political preferences (because Posner defines the concept of political preferences in an all-consuming manner)—and that anyone who thinks otherwise is deluded. Given the fact that Posner reduces Supreme Court decisionmaking on most constitutional questions to mere politics, his resort to reductionist political labels is consistent.
But the particular political labels that Posner adopts don’t make sense, even within his scheme. Let’s skip over Posner’s reference to the “startling (to the naïve) right turn” by the Court, as it’s not clear how sharp a turn Posner thinks the Court made. (As I explain here, if crude political shorthands must be employed, the 2006-2007 term is best summarized as a small step towards the right—and towards the center.) How can Posner label Justice Alito an “extremely conservative” justice? Let’s assume, as Posner presumably does (and as I hope), that Alito’s general positions on constitutional law may, over time, largely comport with those of Justice Scalia. As I discussed in Part 5 (5th paragraph), on the broad bulk of constitutional issues, the Scalia position is that the Constitution is substantively neutral and that the matter is left to the political processes for decision. In a sensible system of reductionist political labeling (as I discuss in this essay), that position is moderate. Even after one sprinkles in the much smaller number of instances in which Scalia would override the political processes, it’s difficult to see how Scalia would merit anything other than a label of moderate conservative—the label Posner mistakenly confers on O’Connor (who, among other things, voted to retain the radical abortion regime that the Court imposed in Roe). Posner doesn’t offer a word of explanation for his mislabeling of Alito and of O’Connor, and it would seem that his labels merely signal that he finds his own positions closer to O’Connor’s than to Alito’s.
2. Posner asserts that in his first two terms Chief Justice Roberts “demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law.” According to Posner, the “tension” between Roberts’s invocation of the umpire analogy at his confirmation hearing and “what he is doing as a Justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”
Posner’s characterization of Roberts’s first two terms is rank and conclusory hyperbole, and the tension that he posits, along with the supposed resulting “blow to Roberts’s reputation for candor,” is tendentious distortion. As Posner recognizes, Roberts’s umpire analogy is legalist in nature. If Roberts were to determine that previous umpires have misdefined the strike zone, it would be entirely consistent with his analogy for Roberts to strive to redefine it properly. The tension is not between Roberts’s testimony and his performance, but between Roberts’s legalist understanding of judging and Posner’s pragmatism.
Posner’s curious and baseless attacks on Roberts and Alito invite attention to Posner’s discussion of the psychological theory of judicial behavior. Might Posner resent the fact that his juniors have become his superiors? Unfortunately, his brief discussion of the psychological theory does not address the possible phenomenon of SCOTUS envy.
3. Posner asserts that “[m]ost judges who oppose abortion rights do so because of religious belief rather than because of a pragmatic assessment of such rights.” This statement is remarkably sloppy. First, Posner offers no empirical or even anecdotal support for it. Second, Posner fails to make clear whether the phrase “oppose abortion rights” means merely “believe that the Constitution does not confer a right to abortion” (in which case, of course, the legislative process remains available to protect abortion) or means also “opposes the legislative conferral of abortion rights.” (We can exclude a third possible meaning—“believes that the Constitution prohibits permissive abortion laws”—only because few if any judges have ever taken that position.) Third, Posner presents a false dichotomy: There are plenty of legalist reasons beyond “religious belief” or “a pragmatic assessment” to recognize that the Constitution does not confer a right to abortion—and not even Posner contends that judges can adopt legalism only out of “religious belief.”
4. Posner asserts, in the context of discussing judicial confirmations, that “the Republican Party is more disciplined than the Democratic Party and therefore better able to organize opposition to a nominee.” Posner offers no evidence for this startling assertion. Nor does he confront the most obvious contrary data: (a) Whereas Justices Ginsburg and Breyer received strong support from Republican senators and were confirmed by overwhelming majorities (96-3 and 87-9, respectively), Roberts and Alito encountered ardent opposition from Democratic senators and much closer vote margins (78-22 and 58-42, respectively). (b) Senate Democrats have taken the unprecedented step of resorting to partisan use of the filibuster against President Bush’s lower-court nominees. In 2003 and 2004, they succeeded in defeating some 20 cloture petitions on ten different nominees, five of whom were never ultimately confirmed.
I would have thought that the necessary intellectual temperament of a pragmatist would be empirically focused, skeptical of his own initial certitudes, and meticulous—not abstract, dogmatic, and sloppy.