Balkinization  

Monday, December 04, 2006

Judge Posner's Seductive Realism and Pragmatic Adjudication--Beware the Pied Piper

Brian Tamanaha

Judge Richard Posner is the intellectual phenom of this era in law. There is no doubt about it. The author of about two thousand written decisions, over thirty books, and several hundred articles, no one comes close to his productivity. His influence is also unmatched. Posner’s judicial opinions are cited by other judges more often than the opinions of any other judge, and his decisions and scholarly works are cited by academics more often than the work of any other jurist. He is a leading light of two influential contemporary academic movements: the economic analysis of law, and legal pragmatism.

Beyond these stellar achievements, however, Posner’s most enduring legacy may well be to severely undermine the rule of law within the judiciary. Judge Posner is especially dangerous because he clothes his radicalism in seductively realistic and reasonable-sounding words—as if he’s just being a straight-talker, nothing new, nothing shocking.

Given his stature, his high judicial position, his compelling intellectual style, and the content of his ideas, it is hard to imagine that anyone could be more subversive to the rule of law than Judge Posner.

Ample evidence for these strong assertions can be found in this recording of a recent dialogue between Judge Posner and Professor Brian Leiter at the University of Chicago Law School. The interview nicely encapsulates his core views about the nature of judging and about what he calls pragmatic adjudication (which he has elaborated in many books and articles).

His views on these two topics can be summarized as follows: Posner believes that judging on the Supreme Court is almost entirely political, and he believes that judging on the Court of Appeals (his court), and judging generally, is substantially political. This view of the political nature of judging is widely shared among legal academics and political scientists, although many judges disagree. Posner, furthermore, advocates that judges should decide cases in a pragmatic fashion, oriented toward rendering the most reasonable decision in a given case (all things considered).

To obtain a sense of Posner’s view of these matters, consider his comments (paraphrased):

When asked by Leiter whether he thinks that judges have a duty or obligation to apply the law, Posner pointedly does not accept the terms of the question. Rather than characterize it as a duty, he said that there are basic “rules of the game” that judges must conform to (violators risk effort-wasting and embarrassing reversals), to wit: judges must follow any statute or precedent that clearly resolves an issue. Judges are constrained by rules in this sense.

However, according to Posner, these constraints are almost never at play at the level of the Supreme Court (cases that make it to that level are seldom clear in legal terms, and the Court can repudiate its own precedent), and “very often not in play” at the Court of Appeals. “A significant fraction” of the cases heard by the Court of Appeals is not clearly determined by statutes or precedent. Moreover, Posner says, the ordinary canons of statutory interpretation and reasoning by analogy do not help produce a legal answer.

Hence, in that situation, a judge must render a decision about the most reasonable result for the present and future. There is nothing particularly legal about this decision. Judges simply make policy judgments based upon their life experiences, temperament, and ideological views. [Notice how much Posner agrees, at least on these points, with the old “Crits”—Critical Legal Studies folks who were highly skeptical of the role of law in judicial decision making.]

Posner fully embraces the implications of his views of judging. He recognizes that judges may have different opinions about what is a reasonable result in a given case—that’s just the way it is. Whichever view happens to have the most votes on a judicial panel wins. Outcomes in given cases are therefore a function of the vagaries of who happens to be assigned to a given panel. Tempering this implication, Posner also points out that appellate judges agree a great deal of the time, but he insists that this agreement is not so much attributable to shared interpretations of the law, but rather to similar outlooks, experiences, and values held by judges, which produce shared judgments about what is reasonable. Since decisions in these cases rest upon political views, Posner accepts that the political views of individual judges should be considered in the appointments process (and he adds that, rhetoric notwithstanding, the Senators already know this).

Posner’s description of what judging is and should be seems refreshingly realistic and candid. Many law professors and most political scientists—who are well versed on the indeterminacy of law and the influence of politics on legal decisions—already hold these views, which makes his observations all the more attractive to these audiences. Coming from a judge—indeed from the most influential contemporary jurist—his pronouncements about the nature of judging carry added weight.

But is Posner correct?

To answer this we must separate two different types of claims: His descriptive claims are that the law often does not provide a clear answer, and in these cases judges largely render their decisions on political grounds (whether consciously or not); his prescriptive assertion is that judges should decide cases in a pragmatic manner. (The discussion below only addresses lower court judges, not the Supreme Court, for which the situation is more complicated).

Let’s take up the descriptive claims first.

Contrary to Posner, many judges adamantly insist that most of the time the law determines their decisions. Although the law will not always dictate a single right answer, even in situations of legal uncertainty usually one outcome can be ranked as more legally defensible or persuasive than other outcomes. Judges admit that sometimes the law runs out—no outcome is legally stronger than any other—so a decision must be made on other grounds, but they insist that this not a frequent occurrence.

Posner accounts for these denials by asserting that many judges are self-deluded or being deceptive (“inauthentic”) about their actual decision-making process, and that their written decisions are after-the-fact rationalizations which conceal the actual (political) basis for the decision. Here his descriptive and prescriptive claims merge: He thinks that many judges in fact already render decisions in the pragmatic manner he advocates, but he wants this to be done consciously and openly, which would produce better results.

For their part, the judges who insist that most of their decisions are determined by the law, not their policy preferences, can respond that Posner is projecting his own decision-making process onto other judges. It is Judge Posner who tends to decide a disproportionate number of cases on political grounds. [On this point: As indicated here, 1994 report by the Chicago Council of Lawyers concluded: “A very substantial number of lawyers believe that Chief Judge Posner routinely does not pay sufficient attention to the facts, or leaves out crucial facts, in order to reach desired conclusions….Chief Judge Posner feels less constrained by precedent, history, and the proper limits on appellate judging than, in the Council’s view, he should…”].

These judges can agree with Posner’s assertion that published decisions are rationalizations constructed after-the-fact—rather than accounts of how the decision was actually made—because written opinions are meant to articulate the strongest legal argument that justifies the decision. There is nothing dishonest about this practice.

It appears that we have a standoff on the descriptive claims. Many law professors and political scientists side with Posner, in part because that is what they already believe. In support of this belief they point to multiple studies that show correlations between judges’ decisions and their personal attitudes.

But the judges who insist that law decides cases can point to the very same studies, which acknowledge that an overwhelming proportion of appellate decisions are unanimous (often in the 90% range), notwithstanding ideological differences among judges. Posner, moreover, has offered no evidence to support his assertion that this high proportion of agreement is largely the product of the shared social values of the judges rather than the more immediate and obvious explanation that it is the product of shared interpretations of the applicable law (as determined by the conventions of the legal tradition).

Although it looks like a tie, a compelling argument can be made that Posner (and like-minded law professors and political scientists) has not made his case, for this reason: Posner’s descriptive assertions rest on the claims that the bulk of judges are either self-deluded or perpetrating a deception. These uncharitable claims require support, especially in an era in which the entire legal culture—including judges—has been thoroughly influenced by Legal Realism. No judge today believes in the old formalist bromides about mechanistic reasoning. Therefore, we must recognize that, based upon their own realistic understanding of law, judges still insist that most of their decisions are determined by the law. The burden, it seems fair to say, remains on Posner.

Now let’s take up his prescriptive claim about the attractiveness of pragmatic adjudication.

The best way to evaluate the implications of his proposed approach to judging is to see how it works out in a specific context. Here is Posner’s description of the process by which he would render a decision about the legality of President Bush’s highly controversial warrant-less wire tapping program, which raises complex legal questions. “The way I approach a case as a judge,” Posner wrote, “is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.”

Note, first, that Posner’s primary orientation in this description is not rule-oriented or legal. It is, rather, outcome-oriented and based on non-legal (“lay”) considerations. One should also recognize how extremely ambitious this task is. Security experts as well as lay people sharply disagree about what is a “reasonable result” in this situation. Decisions of this type rest upon many imponderables of both value (the importance of civil liberties) and fact (the usefulness of this program as compared to alternatives). The problem is not just that there will be great disagreement over what is a reasonable result, but that there is no demonstrably correct or best answer to this question. In effect, under Posner’s approach, we have traded an open and complicated legal question for an even more open and complicated policy/value-based/empirically-contingent question. And why we should think that judges are qualified to make such decisions? [A brief digression: In his interview with Leiter, Posner criticizes Dworkin’s theory of judicial decision-making as too ambitious because it requires judges to rationalize large areas of law and to render difficult and contestable decisions about moral principles for which judges are unqualified. Posner is right about his criticisms of Dworkin, but, as this example shows, the very same charge of impracticable ambitiousness can be leveled against his own more “modest” pragmatic approach.].

There is another serious problem with his approach. After coming up with the most sensible result, Posner will then consult the applicable legal rules to check whether that result is clearly prohibited. But an outcome that can pass this test—one that is not clearly prohibited by the law—is not necessarily the strongest or most correct legal outcome. Owing to the indeterminacy of law, the “not clearly ruled out” standard proposed by Posner means that judges will have substantial leeway to implement whatever result an individual judge considers sensible.

Now we can pin down the concrete difference between Posner’s pragmatic adjudicator and judges who are committed to following the law. Posner has in effect given us two tests to be used together: if the law is clear, the judge must follow it, but if the law is unclear (which he says happens a lot), then the judge can rule in favor of what the judge deems reasonable, unless that particular outcome is clearly prohibited by the law. Sandwiched between these two tests is the large body of cases in which the law is less than clear, but one result is more legally compelling or defensible than any alternative interpretation. Unlike pragmatic adjudicators, who in these cases will decide for the reasonable result (as determined by their own lights) unless it is clearly ruled out, judges committed to following the law will feel duty-bound to render the most legally compelling decision.

I began this post by stating that Posner’s ideas—in particular his pragmatic adjudication—pose a grave threat to the rule of law. The reasons for this should now be manifest. Under his proposed approach, judicial decisions will often be driven by policy decisions about outcomes rather than by the applicable rules. Outcomes will turn on the views of individual judges, but judges have different views on these matters. Certainty of application, predictability, and equality of application will diminish. It is true that politics already (and inevitably) has some play in judicial decisions, but the immediate effect of Posner’s pragmatic adjudication will be to further loosen legal constraints by encouraging judges to shift more quickly (when the legal result is not clearly dictated) to making result oriented non-legal decisions. This will alter the proportion in judging away from legal toward more political decision-making. It will more often be the rule of the individual who happens to be the judge, rather than the rule of law.

Posner’s response to these objections is that he is merely describing the reality of the situation, so denying it or decrying its harmful consequences to the rule of law is pointless. The rule of law still exists, according to Posner, as long as the judge remains “impartial” (in the sense of not favoring a litigant).

My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.

This, too, is a realistic view of judging. Like Posner, I am a pragmatist. And my argument is that, for pragmatic reasons, owing to the harmful consequences to the rule of law that will follow from adopting Posner’s approach, judges should reject his pragmatic adjudication. Judge Posner acknowledges that a pragmatist need not think that pragmatic adjudication is wise. He wrote: “[A] pragmatist committed to judging a legal system by the results the system produced might think that the best results would be produced if the judges did not make pragmatic judgments but simply applied the rules.” Indeed.

The danger is this: if people within and outside the legal culture succumb to his view that judges already in fact decide cases in this manner, and should decide cases in this manner, more and more judges will begin to reason in this fashion. Then his descriptive claim will be correct, and, I fear, we will discover the untoward consequences of his prescriptive claim.

On this final point, the dialogue between Judge Posner and Professor Leiter was worrisome for another reason. It was an event sponsored by the Federalist Society at the University of Chicago Law School. Yet this group, explicitly dedicated to promoting the appointment of judges who commit themselves to follow the law, hardly challenged his ideas, which are fundamentally antithetical to this objective.

In fairness to the students present, Judge Posner is an intellectual giant with immense stature. His partner on the panel, Professor Leiter, indicated that he agrees with much of Posner’s position (though his questions raised some of the above objections), and he is a formidable legal theorist in his own right. It would require unusual courage under these circumstances to press the Judge (and he adroitly side-stepped the few students who made the attempt).

Although I avidly read Posner’s work (as well as Leiter’s), and can be counted as a fan, I feel compelled to sound out this warning: be wary of the pied piper of pragmatic adjudication.

Comments:

I'd like to focus on just one small point made in the posting -- that "written opinions are meant to articulate the strongest legal argument that justifies the decision. There is nothing dishonest about this practice."

I believe that this practice is dishonest. An advocate's briefs should articulate the strongest legal argument that justifies his position. "[T]he task of a judge," by contrast (I quote James Boyd White in _Justice as Translation_) "is to expose to the reader the grounds upon which her judgment actually rests, with as full and fair a statement of her doubts and uncertainties as she can manage. Such an opinion would establish a relationship of fundamental equality with the reader, who might follow the whole argument, consider himself enlightened by it, but come to the opposite conclusion."
 

This is a very nice post and seems largely right to me. It's important to stress, though, that this should have been obvious to anyone reading Posner, both his written opinions and his more academic work, for years and years. (His book on Bush v Gore is an obvious example.) The various spankings given to him by Ronald Dworkin over the years are good places to look to help see what's wrong with this view. Some of them can be found on Dworkin's NYU web page.
 

First off, Judge Posner is far too quick to replace the objective "reasonable person" with his own subjective preferences. This trend is omnipresent throughout his recent opinions and commentaries.

Meanwhile (and this may be saying the same thing in a different way), I've noticed that Judge Posner, especially in his recent "terror v. civil liberties" writings, suffers from what economists call "lexicographic preferences."

In other words, once Posner decides that "security trumps privacy," then that's it, game over; any and every intrusion into civil liberties is "worth it." You don't want another 9/11, do you?

That such reasoning could come from a man so readily associated with "law & economics" -- a complete disdain for cost-benefit analysis at the margin -- has befuddled me ever since he started writing about the war on terror.
 

It is sad to see a man of Posner's obvious intellect openly admit that he is violating his oath of office to apply the law and see nothing wrong with this.
 

Hello, Brian. Interesting post. So if I understand it, your argument to the view that Posner’s ideas constitute a grave threat to the rule of law runs as follows (I’m constructing this from the "I began this post" paragraph which summarizes your argument to this view):

1. If judges accepted Posner’s ideas, judicial decisions would often be driven by policy decisions about outcomes rather than by the applicable rules.

2. If judicial decisions are often driven by policy decisions about outcomes rather than by the applicable rules, then outcomes will turn on the views of individual judges.

3. If outcomes turn on the views of individual judges, then if judges have different views about what outcomes are desirable, then certainty of application, predictability, and equality of application will diminish.

4. Judges do have different views about what outcomes are desirable.

5. (From 3, 4) So if outcomes turn on the views of individual judges, then certainty of application, predictability, and equality of application will diminish.

6. If certainty of application, predictability, and equality of application diminish, then the proportion in judging will be altered away from legal toward more political decision-making.

7. If the proportion in judging is altered away from legal toward more political decision-making, then there will be a grave threat to the rule of law.

8. (From 1, 2, 5, 6, 7) So if judges accepted Posner’s ideas, then there will be a grave threat to the rule of law.

6 and 7 seem dubious at best. And what do you mean by "the rule of law"?
 

This is tangential to Prof. Tamanaha's point, but....

Is anyone else unimpressed with Posner? I certainly haven't read all his writings, but those I have read seemed superficial. Perhaps that's a consequence of the quantity of his output; IMHO he might have done better if he had done less.
 

Posner's approach really seems to lead to a situation whereby the law tends to become capricious. What useful purpose can it serve, being untrue to itself?
 

Professor Tamanaha: [Judge Posner's assertion] shared social values of the judges rather than the more immediate and obvious explanation that it is the product of shared interpretations of the applicable law...

This strikes me as a bit recursive. Shared interpretation can only rise from shared social values. I don't see how to separate these in any meaningful way.

Professor Tamanaha: Posner’s descriptive assertions rest on the claims that the bulk of judges are either self-deluded or perpetrating a deception

The Fruedian's have the doctrine of denial. The Marxists have "false consciousness." Judge Posner has the above. All are serious errors of thought, self-sealing prophecy, views for which evidence and lack of evidence are taken as confirmation (e.g., "Of course you can't prove the Protocols of Zion were written by the Elders, which just proves how canny they were in writing them!") It's slipperier than self-fulfilling prophecy, but in the end it's a variant on begging the question, and really should be beneath anyone as highly situated as Judge Posner.

In line with kipesquire's comment, when Judge Posner says, "ask myself what would be a reasonable, sensible result, as a lay person would understand it" what we have is plain old disingenuousness. Nobody in Judge Posner's position should be allowed to pretend this is an acceptable method. "Reasonable", "sensible" to *which* lay person? The laity is a tremendously heterogeneous group from which an arbitrary sample cannot be assumed to be representative. Nor can recourse to statical analysis of the "average" layperson be of use in determining soundness of an argument, much less the rightness or lawfulness of a decision---such things are not democratic in nature, any more than the nature of pi.

Mark Field:
Is anyone else unimpressed with Posner?


I have found Judge Posner to uniformly be what I impertinently think of as a Social Darwinist Apologist, one who, as Professor Tamanaha so eloquently puts it, "clothes his radicalism in seductively realistic and reasonable-sounding words---as if he’s just being a straight-talker, nothing new, nothing shocking". I have argued elsewhere that the ascendancy of economic thinking is in service of the monied class, which is fine and good as far as it goes. But when such thinking allows pollution to be deemed "external" to an endeavor we see a serious weakness in the overall value of such analysis. By their own stated values the economic analysts fall short because of their bizarre ability to draw arbitrary lines (which only coincidentally happen to support big, and increasingly bigger, business) as if ignorant of the realities of interdependent systems. But even if they played fairly within their own rules, the model of users and utiles, like all models, is limited. We are more than our use of the things we use. And as Professor Tamanaha has pointed out elsewhere on this blog and in his book, where Law is allowed to be solely a tool, a means to an end of litigants, then justice, equality and liberty suffer.
 

Judge Posner's main contribution is the application of economics to law. His approach is very successful where the law applies to business, somewhat interesting when applied to criminal law and utterly useless when applied to individual rights.

Economics is essentially about maximizing efficiency. Our laws should be efficient when applied to business to avoid imposing undue burdens on the economy. Due in no small extent to the work of judges like Posner and Bork in this area, our business laws are the envy of the rest of the world.

However, individual rights is all about placing burdens against government actions against the citizenry. In this area, the last thing we want is an efficient government.
 

Judge Posner left law & economics behind when economists starting testing his conclusions using data. That he moved on to pragmatism is probably no surprise since he thinks himself the ultimate pragmatist. He has always known himself to be the reasonable person deciding what should be decided.
 

Bart: In this area, the last thing we want is an efficient government.

Within that framework I can only say, "Amen!"

We'll reserve for a later day slippery issues such as questioning the legitimacy of considering "the citizenry" as separable from "the government", or "the market" as separable from "the government".
 

Speaking about insincere and dangerous legal reasoning: read the smackdown of the administration's arguments by the padilla defense.

Sorry to post this in this thread but ouch, this must hurt for the administration. You can find the other new motions here, here, here, and here.
 

Anne:

Do you have a link to the GOVERNMENT’S RESPONSE TO THE MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT?

I googled it and could not find anything. The interested parties posting these motions seem only interested in posting the defense motions. I wonder why?

It is difficult to determine if the Government's response was actually "smacked down" without seeing the arguments and the legal authority presented by the Government.

I am not an expert in this area but I had no problem differentiating the defense outrageous government conduct cases cited by the original defense brief with a half hour of research on the net. I am sure Justice did a much more thorough job in their response brief.

Outrageous government conduct is almost never recognized as an absolute defense to a criminal charge except when the alleged outrageous conduct brought either the person or the evidence into the jurisdiction of the court. Neither situation exists here.

The tone of the defense reply screams, but it does not scream confidence. The defense spends a great deal of time pleading for a hearing to keep their motion alive in the hope that something might turn up to actually prove Padilla's allegations of torture.

I would be amazed if the court granted the defense motion to dismiss, but the judge may order an evidentiary hearing, which would of course be appealed by the government. This tussle could go on for months.

Given how weak the government case appears in the press, I wonder whether Padilla's attorneys are more concerned with making a political point about "torture" while leaving Padilla in jail rather than go to trial to get their client released. Unless, the government case is stronger than we have been led to believe by the press.
 

"When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?)."

Well, they could do what I typically would do in that situation (unless the case was one for the ages): figure out the most reasonable result that is likely to withstand scrutiny of/not be reversed by the Court the next level above mine.
 

Anne:

Here is a link to the government's response brief, which I found trolling around trying to find out about the defense attorneys in this case.

http://www.discourse.net/archives/docs/
Padilla_torture_response.pdf

I will print out and read this puppy tomorrow.
 

Very interesting post, Prof Tamanaha. It seems like Posner/pragmatism needs a defender on this thread. First, I doubt Dworkin's own website is the most objective resource as to who has "won" the debate between him and Posner. By my lights, it's Posner hands down. In any event, even if you don't care what I think (no reason you should) it is worth noting that Dworkin isn't even taken seriously anymore in his field of speciality, legal philosophy. Second, if you're "unimpressed" by Posner, I think you need to read more. Agree wiht him or not, he is an impressive intellect.

I do think that Posner overstates the attitudinal model/political/legal realist compenent of adjudication, but not by much (certainly not at the USSC level). Recent empirical research ive seen seems to show that while there is a significant political component to COA panels and votes, there is also, as Prof Tamanaha notes, a high level of agreement on many cases, which shows that the behaviroalists have something to add to the conversation.

Perhaps most importantly, Posner's pragmatism isn't getting a fair shake here. It isn't simply a judge invoking his own personal preferences and then writing an opinion to justify that in legal jargon. An important point is made in "Law, Pragmatism, and Democracy"; Posner writes (and I paraphrase) that if a judge is faced with whether there is 14th Am SDP right to assisted suicide, the judge should rather than "inhale the intoxicating vapors of const theory" (i remember that nugget verbatim!) he (she!) should familiarize himself with relevant social science research and determine whether it is good policy.

To my mind, this is a better way to approach judging rather than a judge in the Scalia/Thomas vein to articulate his position that there is no such right in legal jargon or, from the other end of the spectrum, a Brennan/Marshall dressing up his political preferences in lawyers terms of art. ANother example: Kennedy's decision in Lawrence to use that horrible language about the mysteries of life (didnt we/he get our/his fill in Casey?) and defnining one's own concept of existence.

The thing is, I AGREE with the outcome in Lawrence wholeheartedly, but Kennedy leaves himself open to criticims by basing his ruling on second-rate philosophizing (at the very least criticism by conservative laypeople, journalists, etc.)

One final point. I think the posts in this thread show, and refute, Prof Tamanaha's point about judges disputing that they allow their personal/political preferences to influence outcomes. How is that everyone in this thread (I assume everyone has a JD or is in law school, or poli sci (but maybe that's not a fair assumption))is so upset by Posner's putative twisting (or whatever) of the "law." My point is that lawyers (and this includes the judges) have been instilled with this sense what is "law" and what isnt "law" and what Posner is doing is not "law" properly conceived because he's not playing by the rules of the game. To get at in a different, maybe more coherent way (hey, it's late), there is some serious self-rationalization going on in the judge's mind because the idea of a jduge deciding cases by personal preferences runs up against the judicial archetype that we are instilled with in law school where we learn the law by reading . . . judges' opinons. This last point could be developed better, but I quit, for now . . .
 

Bottom line for me: Judges are granted the power they exercise by society on the presumption that they will be impartial umpires, implementing the rules the elected branches have created. To the extent that they are seen as making, rather than implementing, policy, they forfiet this presumption, and their exercise of power becomes illegitmate in the public eye.

As the perception grows that they exercise illegitmate power, the pressure builds to take that power away, or to legitimize it by subjecting the judiciary to the same sort of public, policy preference based selection that the legislative and executive branches are chosen by.

In other words, if judges don't want to be relentlessly grilled on their policy preferences before being confirmed, and to be subject for removal based on rulings, not misconduct, they'd better at least try to create the illusion that they're not just using the law as an excuse to implement their own personal preferences.

Posner may be frank about what he does, but what he does undermines the legitimacy of his own office.
 

Calvin TerBeek said...

Perhaps most importantly, Posner's pragmatism isn't getting a fair shake here. It isn't simply a judge invoking his own personal preferences and then writing an opinion to justify that in legal jargon. An important point is made in "Law, Pragmatism, and Democracy"; Posner writes (and I paraphrase) that if a judge is faced with whether there is 14th Am SDP right to assisted suicide, the judge should rather than "inhale the intoxicating vapors of const theory" (i remember that nugget verbatim!) he (she!) should familiarize himself with relevant social science research and determine whether it is good policy.

Apart perhaps from legal procedural questions, the unaccountable Courts have no business whatsoever setting policy in a Republic. We elect the other two branches to do so and can reverse their decisions in the next election. This is especially the case when interpreting the Constitution, which cannot be easily changed by the citizenry.

Professor Levinson bemoans the fact that the popular will reflected 2006 elections did not reach the Presidency. Perhaps, this frustration gives you a mere hint of the outrage many conservatives feel when we see a leftist Court semi-permanently rewrite the Constitution to place their policy preferences into the law of the land.

To my mind, this is a better way to approach judging rather than a judge in the Scalia/Thomas vein to articulate his position that there is no such right in legal jargon or, from the other end of the spectrum, a Brennan/Marshall dressing up his political preferences in lawyers terms of art.

The wrapping in which an opinion is presented is unimportant. What is critical is the consistent application of judicial modesty. The Court has no power under the Constitution to invent new rights. Either a right is enumerated or it is one long recognized by society.

The "pragmatism" offered by Posner is in reality an enormous power grab by the judiciary. And as Tom Paine correctly observed, absolute power corrupts absolutely. The corruption has reached such an extent in the judiciary that jurists like Posner publicly proclaim their that they will abuse their power to implement any policy preference they please. Under these conditions, I have less and less sympathy for the concept of "judicial independence" to exercise such power.
 

Anne:

You might want to read the Government response to the Padilla outrageous government conduct motion to dismiss, particularly pages 9-10.

The 11th Circuit, under which this case is being tried, held in the case US v. Matta, 937 F.2d 567 (11th Cir. 1991) that alleged torture of the defendant by US Marshals during the extradition of defendant from Honduras did not provide a basis to dismiss defendant's criminal indictment. In this case, the 11th Circuit adopted the reasoning of the 7th Circuit, that the proper remedy in these cases is a civil cause of action against the alleged perpetrators of the abuse.

In their reply brief, the defense completely ignores the dispositive Matta holding and instead misleadingly argues that the Padilla allegations are without precedent.

The spanking you were hearing was the government laying on the legal paddle. What you heard from the defense was squealing and begging for a hearing.
 

@Bart: We'll see... Don't want to pollute this thread any furhter and in general: I stopped giving substansive answers to your disingenious way of reasoning.
 

Bart Depalma:"The Court has no power under the Constitution to invent new rights. Either a right is enumerated or it is one long recognized by society."

So to understand this, if a judge passes an opinion which seems to grant a right not enumerated in the constitution, its okay if it is a right that society has already recognized for some period of time.

Wouldn't it be actually impartial for a judge not to recognize the 'rights long acknowledged by society' in an opinion, and instead let the aforementioned other branches of government to enumerate those rights - just to make sure that they are actually recognized by society and not just in the opinion of one judge?
 

bitswapper said...

Bart Depalma:"The Court has no power under the Constitution to invent new rights. Either a right is enumerated or it is one long recognized by society."

So to understand this, if a judge passes an opinion which seems to grant a right not enumerated in the constitution, its okay if it is a right that society has already recognized for some period of time.


Limiting yourself to well established rights recognized by society is the compromise courts came up with to determine which unenumerated rights are being referred to in the various catchall provisions of the Constitution without diverging into imposing their own personal policy preferences into the Constitution.

Wouldn't it be actually impartial for a judge not to recognize the 'rights long acknowledged by society' in an opinion, and instead let the aforementioned other branches of government to enumerate those rights - just to make sure that they are actually recognized by society and not just in the opinion of one judge?

If there is uncertainty over whether a right is "well established," the default ruling should always be to refer the matter to the elected branches.

Polls, foreign law and the such are not evidence of long established rights in America.
 

Tom,

Thanks for asking me what I mean by the rule of law--I wrote the book on the rule of law (literally, pardon the pun), which you can find in the link in the text. Although it has several (or a cluster of) meanings, in the context of judging it means, at a minimum, that judges reason with a rule bound orientation.

The key proposition you question is number 6: why does certainty, predictability, and equality of application break down, you ask. The problem is that different judges will have different views of what is reasonable (which Posner explicitly grants in the interview). A person cannot know in advance which judge will be assigned to the case if things go badly, so that person will have less certainty about the likely interpretation and application of the legal rules (hence reducing predictability). Equality of application will suffer because judges will have different views about what is reasonable, so similarly situated people will be subject to different rulings.

Calvin,

My description of Posner's approach is based on a reading of a number of his books and articles, and can be confirmed by listening to the interview.

But you are correct that pragmatic adjudication has not received a full defense in this post. A consistent pragmatist (and here I agree with Posner) must judge the attractiveness of pragmatic adjudication by evaluating the benefits of this approach against its negative consequences. In this post, I have emphasized some (though not all) of the negative consequences, but have said little about the benefits. The main benefit is that pragmatic adjudication will (arguably) have fewer bad results in individual cases, if only because seeking good results is precisely the objective of this approach. While this may be correct (although I have doubts about this because there is inevitable disagreement about what what is a good result)--my point is that this benefit comes at too high a cost.

Robert,

You are correct that there is a potential recursiveness, in that shared interpretations of the law must come from shared values. To break out of this, one must recognize two different types of shared values. Posner is talking about shared social/political/ideological values of the judges. When I refer to shared legal interpretations, I am suggesting that the legal tradition or legal culture is itself a shared body of conventional understandings, and a judge oriented to interpreting the law is--in the first instance--drawing upon this shared body of meaning to come to shared legal interpretations. I am not denying that shared values also come into play (indeed this also influences the conventions of the legal culture), but my argument is that shared legal interpretations can be produced by the conventions of the legal tradition. Distinguishing the influence of these two bodies of shared meaning is complicated, and I plan to post more on this in the future.

Brian
 

if you're "unimpressed" by Posner, I think you need to read more. Agree wiht him or not, he is an impressive intellect.

I suppose I could always read more, but "Posner longa, vita brevis", as they say. It's like a novel -- if you aren't hooked by page 50-100, you're not likely to enjoy the rest.

I'm unlikely to agree with him in any case. I basically agree with Brett (slightly edited) that "Judges are granted the power they exercise by society on the presumption that they will be impartial umpires.... To the extent that they are seen as making, rather than implementing, policy, they forfiet this presumption, and their exercise of power becomes illegitmate in the public eye."

That doesn't mean I ignore the force of the Legal Realist claim. But that has to be tempered, or constrained, by the factors Prof. Tamanaha mentions in his response just above. Absent those constraints, nobody will see judges as impartial.

I doubt anyone does see Posner as impartial. The passage which really stands out in the original post is this: “A very substantial number of lawyers believe that Chief Judge Posner routinely does not pay sufficient attention to the facts, or leaves out crucial facts, in order to reach desired conclusions...." I can't imagine a more damning criticism of a judge or his philosophy.
 

I am a career law clerk. I work in the sausage factory. Having drafted countless opinions and worked with many a judge, I make the following observation: Judge Posner's greatest sin is articulating the reality of judging.
 

Bart Depalma:"Limiting yourself to well established rights recognized by society is the compromise courts came up with to determine which unenumerated rights are being referred to in the various catchall provisions of the Constitution without diverging into imposing their own personal policy preferences into the Constitution."

How should one define point at which a judge has gone beyond rights unenumerated yet pointed at by constitutional catchalls and into imposing their personal policies? This seems to be one thing that Posner is looking at.

"Polls, foreign law and the such are not evidence of long established rights in America."

Foreign laws, obviously not. Properly conducted polls, however, actually are evidence of what people think. While not always conclusive, the argument that they are better evidence than the opinions of liberal/conservative judges is compelling, since polls have both track records of accuracy as well as scientifically verifiable method, and they are intended to reflect public opinion.
 

bitswapper said...

Bart Depalma:"Limiting yourself to well established rights recognized by society is the compromise courts came up with to determine which unenumerated rights are being referred to in the various catchall provisions of the Constitution without diverging into imposing their own personal policy preferences into the Constitution."

How should one define point at which a judge has gone beyond rights unenumerated yet pointed at by constitutional catchalls and into imposing their personal policies?


You can look at whether the laws of the land have recognized this right over a long period of time.

Marriage is just such a long standing legal right which the Court later interpreted to be among the unenumerated rights protected by the Constitution.

"Polls, foreign law and the such are not evidence of long established rights in America."

Foreign laws, obviously not. Properly conducted polls, however, actually are evidence of what people think.


To the extent they are even accurate, polls at best are a snapshot of the population at any one time. As such, they are not evidence of long standing rights. The courts should not be writing the vagaries of public opinion as reflected less than accurately by a poll in the the Constitution.
 

Professor Tamanaha: Distinguishing the influence of these two bodies of shared meaning is complicated, and I plan to post more on this in the future.

I know I'm not alone in looking forward to that. Also, I sure hope it didn't seem like I was asserting you didn't appreciate the need to distinguish the concepts or the difficulties therein. I meant only that I have not yet come to any satisfactory resolution in my own mind.
 

Bart: Polls, foreign law and the such are not evidence of long established rights in America.

Bart, would you allow for an exception to your statement in that English Common law is the foundation of all our law and legal traditions, hence to at least that extent "foreign law" is evidence of said long established rights?

As for polls, as I alluded to elsewhere, even if a poll "shows" pi equals three that won't make it so, not even if the poll is of the electorate being polled for a Constitutional Amendment to that effect. This, in turn, exemplifies the primary inherent weakness of democracy, against which the courts are meant to guard, agreed?
 

Robert Link said...

Bart: Polls, foreign law and the such are not evidence of long established rights in America.

Bart, would you allow for an exception to your statement in that English Common law is the foundation of all our law and legal traditions, hence to at least that extent "foreign law" is evidence of said long established rights?


You have a good point there. To the extent that our Constitution is based on English common law rights, examining the extent of those rights may be a tool our courts would want to use.
 

Bart Depalma: "As such, they are not evidence of long standing rights."

What would you say is evidence of long standing rights? Just precedent of written legal opinions? How much time must pass for right to graduate to the status of long-standing? Should judges simply grant a right under the banner "its long standing"?
 

A few comments:

You note that studies that show correlations between judges' personal attitudes and their decisions also show a high degree of unanimity between judges, and go on to say that these facts are equally compatible with either Posner's view, shared by American realists, that judges don't really formalistically apply the rules no matter what they say, and your ("common sense"?) view that, well, they really do most of the time. However, it seems to me that only the former hypothesis is really compatible with both these facts; the latter would actually predict no signficant correlation between a judge's views and her decisions. It's worth noting that Leiter believes that the disagreement between HLA Hart and the American realists boils down to basically this issue.

Secondly, it's obvious that the canons of construction and so on differ from country to country, but we see that the legal environment in most Anglophone countries is pretty similar (except, of course, where it's different); more similar than we'd expect, given centuries divergence in laws. I'd expand on this, but the comment is already getting too prolix.

Also, according to Leiter's blog post on this, the event was organized by both the Federalist Society and the American Constitution Society at U. Chicago. I notice that some of the questioners actually were a teensy bit sharp. ("What's the point of a legislature, except to confirm judges?")
 

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