Judge Posner’s primary argument for judicial pragmatism is that “there is no alternative” to it. As I discussed in Part 3, I am not persuaded that Posner has demonstrated the inadequacy of legalism.
Posner’s secondary argument for judicial pragmatism is that it produces “better consequences” than legalism. I am not particularly interested in contesting Posner on this ground. As Posner suggests, it would be curious to rest the defense of legalism on pragmatist grounds. At bottom, the only legitimate test of a legalist approach is whether it produces legally right results, not whether those results are, in the judgment of some grand social engineer, better for society than what pragmatism would yield.
That said, I would like to call into question briefly whether pragmatism can really be expected to yield the favorable consequences that Posner claims. (I certainly don’t claim any particular familiarity with the academic literature that must exist on this point, or on the broader competition between legalism and pragmatism, and I have no illusion that my brief observations are original—it would be troubling if they were—or complete.)
First, as a simple matter of institutional competence, I question whether the typical federal judge is able to weigh the relative social consequences of different possible rulings. I don’t mean this comment to slight the intellect or ability of judges; I mean, rather, to recognize the inevitable narrowness of their training and the limited empirical perspective that they have on the real world. It will be rare that any judge will have the remarkable breadth of learning and undeniable brilliance that Posner has, and, as my next couple posts will suggest, it’s far from clear that even a Posner has the makings of a competent pragmatist.
Second, as Posner acknowledges, different judges “will weigh consequences differently depending on a judge’s background, temperament, training, experience, and ideology”—and, of course, intellect. Posner’s criticism of Justice Breyer (in a different part of his book) is particularly telling, as Breyer, an avowed pragmatist and an extremely bright man, would seem to be Posner’s closest intellectual soulmate in the federal judiciary:
“[L]aw” for Breyer, or at least constitutional law, seems more his own creation than a body of thought external to his personal views. I am tempted to describe him as a bricoleur—one who uses “the instruments he finds at his disposition around him, … which had not been especially conceived with an eye to the operation for which they are to be used and to which one tries by trial and error to adapt them, not hesitating to change them whenever it appears necessary.” [Quoting Derrida] … Such eclecticism leaves a judge with complete freedom to indulge his political instincts—liberal, conservative, or moderate—as it can accommodate any result that a judge might want to reach for reasons he might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion in the public sphere.
Posner calls Breyer an “intermittent pragmatist whose pragmatism is heavily leavened with liberal political commitments,” but it is difficult to see how Posner’s criticisms of Breyer don’t apply to Posner himself and to any pragmatist.
Third, Posner claims that self-conscious pragmatists “are less likely to be drunk with power if they realize they are exercise discretion” than legalists are. This wishful thinking rests on mere assertion. It also contradicts Posner’s interest earlier in the book on the external and internal constraints on judges: within Posner’s own scheme, it makes no sense that a lessening of constraints would make a judge more constrained. Curiously, whereas Posner had previously emphasized how weak the remaining constraints on federal judges are, he here plays up their significance.