Ethics & Public Policy Center

How Judge Posner Thinks Judges Should Think

Published in National Review Online on April 17, 2008



In his new book, How Judges Think, Seventh Circuit judge Richard A. Posner states that he aims 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.” But his book, in the end, offers much less insight about how judges actually think than about how Judge Posner thinks judges should think.

I.
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 “internal constraints” on judging to be significant. Legalism — the concept that “law is distinct from politics and policy [and] is the realm of rules, rights, and principles” — gives judicial decisionmaking the “appearance of judicial rigor.” But, Posner argues, that appearance is false, as 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.

II.

Does Posner succeed in his stated goal of providing a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”? I certainly don’t think so. As Posner himself acknowledges, his “nine overstated or incomplete” theories of judicial behavior — attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalistic — “make for an unwieldy analytic apparatus.” That analytic apparatus becomes even more unwieldy when Posner adds in his insights on the various factors that motivate and constrain judicial decisionmaking. The fact that Posner’s approach is highly theoretical and abstract, not empirical, compounds the problem. In the end, the reader is left with a hodgepodge of considerations — an interesting hodgepodge, but a hodgepodge nonetheless — that might or might not affect how various judges decide various cases.

III.

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 accepta
bility 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.”

IV.
Judge Posner’s primary argument for judicial pragmatism is that “there is no alternative” to it. As discussed in the preceding section, 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.

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 it’s far from clear that even a Posner can handle the challenges that pragmatism would place on him.

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.

V.
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.

VI.
Having addressed Posner’s central arguments in How Judges Think, 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 discussed above) 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’ve discussed, 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.

VII.
There is much in Posner’s book that is interesting and insightful. In particular, although I think that Posner falls far short of his stated goal of providing a descriptive model of judicial behavior, anyone interested in the topic will find his discussion worth reading. There are also various collateral discussions that I haven’t touched on — modern legal academia, Justice Breyer’s Active Liberty, Justice Kennedy’s “moral vanguardism,” and the Court’s misuse of foreign legal materials, to name a few — that many readers will appreciate.

My overall assessment of How Judges Think, however, is decidedly negative. Beyond the criticisms that I’ve already offered, I’ll add that the book is at least one thorough redraft short of being ready for publication. Posner states in his acknowledgments section that he has “incorporated material” from nine previous articles of his, “though with much revision and amplification,” but the book reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence. Posner is indisputably brilliant and amazingly prolific, but brilliance and rigor, alas, do not always keep company.

– Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.

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