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Removing the Judicial Mask

book cover imageHow Judges Think
by Richard A. Posner
(Harvard University Press, 2008), 387 pp, $29.95

Gerald J. Russello

The debate over judicial nominees follows a well-worn script. Conservatives lament “activist” judges and advocate for “strict construction” of the Constitution. They are especially vociferous these days, as conservative Republicans are still smarting over President George W. Bush’s ill-fated nomination of Harriet Miers to replace Sandra Day O’Connor on the Supreme Court. Now pleased with Chief Justice John Roberts and Justice Samuel Alito, they are keen to “retake” in the 2008 election the seat now held by Justice John Paul Stevens, widely considered the next likely opening. Liberals argue the opposite. They want to be true to the “spirit” of the Constitution, and are drawing up their own lists of nominees, intending to correct what they perceive as the conservative counterrevolution embodied in the Rehnquist and Roberts Courts.

The debate sounds tired, because it is. Richard Posner, in How Judges Think, throws cold water on the rhetoric of both side, and offers an attractive but somewhat unsatisfying alternative. Posner, who is something of a national legal celebrity, first made a name for himself while at the University of Chicago Law School, where he helped found the law and economics movement. The discipline subjected legal doctrines to economic analysis, to determine, for example, whether laws were economically efficient. To his critics, Posner was just advocating utilitarianism in new guise—economically efficient proposals such as a free market in unwanted babies did not endear him to conservatives or liberals—but law and economic analysis has now become a standard part of every lawyer’s education, and its influence cannot be overstated. Posner is also perhaps the most influential American jurist since Oliver Wendell Holmes. Appointed by Ronald Reagan, he has served as a judge on the United States Court of Appeals in Chicago since 1981, and was chief judge from 1993 through 2000.

Posner describes himself as neither an originalist in the mode of Justice Scalia, nor a “living constitution” devotee, but rather a pragmatist in the tradition of Holmes: “in law, pragmatism refers to basing a judicial decision on the effects the decision is likely to have, rather than on the language of a statute or of a case, or more generally on preexisting rule.” The standard attack on pragmatism, of course, is that its defining criterion—“will it work?”—is subject to endless manipulation. Better to have judges bound by clear rules and adherence to precedence to prevent judging turning into “loose legislative cannons,” making amateur guesses on effects of their decisions. After all, what works for one side is inevitably not going to work for the other, losing side. Finding the “right” answer, one that for example accords with sincerely held American values or some measure of objective justice, is for Posner the wrong standard. Such values, if they exist, are not of judicial concern; at most, Posner acknowledges that his version of pragmatism is “constrained” by a few “rules of the judicial game,” such as not playing favorites with the parties to a lawsuit. Pragmatism does come to conclusions that mainstream constitutional law considers just, but based on underlying social facts as the judge perceives them rather than principles of justice. Therefore, Brown v. Board of Education, which outlawed segregation, was rightly decided, even though on originalist or traditional legal grounds, it could justifiably (though unjustly) have been decided the other way.

Posner therefore has little patience for overarching constitutional theories, such as originalism or the “active liberty” defended in a recent book by Justice Stephen Breyer. Not for him are the natural rights/“self-evident truths” that motivated the Founders. The problem with originalism for Posner is that it apparently is not originalist enough. In critiquing Michael McConnell, a prominent conservative scholar and now a fellow federal appellate judge, Posner notes that there are numerous settled precedents originalists will not disturb, including “application of the Equal Protection Clause to the federal government [and] expansion of the Commerce Clause” to intrastate commerce. McConnell, and other originalists rely on “overwhelming popular acceptance” of certain legal doctrines, even though they cannot be justified on originalist premises. Posner finds Scalia inconsistent in his originalism. More accurately, Posner believes that Scalia’s originalism is only one component in a broader array of legal and political goals—such as his desire for clear legal rules rather than vague “standards” or his distaste for the liberal innovation of substantive due process—that he seeks to achieve.

Breyer gets off even worse. In advocating for “active liberty”—a historically and intellectually inapt phrase Posner sharply skewers—Breyer “is simply wearing a mask, the better to compete with the conservatives on their preferred plane of theory.” Breyer wants to foster mass democratic politics, which he believes is supported by the constitutional text. But this belief is shown to be completely unfounded; the Constitution establishes a republican form of government, not some mass plebiscitary democracy overseen by the Supreme Court. In any event, Breyer’s desire for more democracy is contradicted by his express preferences for national power and federal judicial oversight as opposed to a more robust decentralized system.

So, what is it that a Posnerian pragmatic judge does? In what he calls the “basic model,” judges are “all-too-human workers, responding as other workers do to the labor market in which they work.” Judges bring their personal backgrounds and interests to their decisions, and have deadlines, workloads, and other issues to deal with. Moreover, they now have staffs of young law graduates who do most of the opinion research and writing, a development that almost everyone in legal academia and judicial commentary prefers politely to ignore. While the traditional view of judging—applying the law to the facts, without regard for consequences or politics—still exists, it is exceedingly rare, especially in constitutional law. If the answer were clear, the case would not have gotten very far in the first instance. Given various factors, including a legislature that prefers judges to make hard decisions, its complicated federal structure, and the heterogeneity in background and temperament of the judges themselves, creates an “irreducible domain of discretionary lawmaking.” Discretionary means political, though not necessarily partisan. The Supreme Court would be better served, in fact, if “the Justices acknowledged to themselves the essentially personal, subjective, political, and . . . arbitrary character of most of their constitutional decisions.”

Much of Posner’s pragmatic critique is probably to the good. We should stop pretending that a judge is not influenced by personal and institutional biases, though in truth most good advocates are not taken in by that illusion. However, in his defense of pragmatism from his perspective as a federal appellate judge, Posner notes but does not really address how our judicial system came to this pass. Many of the institutional restraints he identifies, such as the crushing judicial workload and the politicized nomination process, are direct results of the increase of federal power in general, and that of the federal courts in particular. The modern regulatory-welfare state, with its emphasis on federally-enforced rights, has been grafted onto a constitutional structure that was not meant to hold it. In light of this situation, pragmatism seems a better course, and perhaps something like it is the best we can do in the general run of appellate decisions.

But if Posner is concerned with judges making decisions that accurately reflect factual circumstances, a truly federal system, with a reduced role for federal judicial archons, is the better course. The debate over most constitutional questions breezily sidesteps the uncomfortable fact that the constitutional system was not designed to work this way, with federal “rights” enforced against states to vindicate individuals. Rather, most of the Constitution is structured as a protection of state and local government against federal encroachment. If taken seriously, this would radically recast how we—as originalist or “living constitutionalist”—understand our governing system, including how we see judges. The Founders thought in terms of individual rights, of course, but they also thought that a virtuous people, not unelected judges, would best preserve liberty, and that the states could take action to promote that liberty—such as establishing churches, as many did until the early nineteenth century.

The federal solution is not perfect, of course, but it places the emphasis where it should be: on making both those subject to the law, and those whose job it is to decide cases based on the law, part of the same community. Posner wants to disabuse us of the notion that “right” answers exist out in the legal ether, usually to be discovered only at the national level by congressional action and judicial enforcement. This is an illusion sponsored by generations of liberal law professors, which has been used to further a liberal political program. The unfortunate aspect of our debate over what it is we expect judges to do is that too many conservatives have bought into the illusion as well.

Gerald J. Russello is Editor of The University Bookman.

Posted: July 29, 2008

A poor man, if he has dignity, honesty, the respect of his neighbors, a realization of his duties, a love of the wisdom of his ancestors, and possibly some taste for knowledge or beauty, is rich in the unbought grace of life.

Russell Kirk

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