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.
Posted 10:27 AM by Brian Tamanaha [link]