Balkinization: Posner on Legalism and Authoritarian Personalities

Comments:

there might be an affinity of some sort between political conservatism, legalism, and authoritarian personalities.

Duh

# posted by

Henry : 2:32 PM

"Interestingly, however, Posner conducted a study which shows that current conservative federal appellate judges vote in a political direction at a much higher rate than liberal judges, which suggests that, while they may espouse a commitment to legalism, they regularly vote like politicians.

As always judges (and especially Justices) are chameleons. "The Devil can quote Scripture..."
Conservative judges can be quite policy/outcome driven and nonauthoritarian judges can employ legalistic reasoning with a vengeance....

We can safely say that ALL judges prefer stress reduction and a general lessening of ambiguity where possible so there probably is a general inclination across the board in decision-making to first consult the "rules" to see if a way can be found to arriving at one's desired outcome easily. If not...then watch out!

# posted by

Michael Sweney : 2:49 PM

Boy do I agree with Posner. I have always detected an undercurrent with Scalia of "you see I am so great and so principled that I am willing to make absolutely horrid, evil decisions that wreak great injustices upon people in the service of my principles". A nice example of this is his concurrence in Herrera v. Collins, arguing the Constitution doesn't prohibit excecuting an innocent person.

That's right at the center of the authoritarian personality that Posner describes. Most of us realize that if strict adherence to our principles leads us inexorably to an offensive conclusion, that's an indicator that our principles are off and need adjustment. Not to Scalia-- to him it's proof that he's got more guts than the rest of us do. He's Napoleon in robe.

# posted by

Dilan : 3:50 PM

Of course, it's vaguely possible that conservative judges rule in keeping with conservative values more often than liberal judges do with liberal values, simply because the Constitution is a conservative document.

I get kind of tired of analysis which ignores the possibility that the Constitution might actually have a meaning independent of judges' biases.

# posted by

Brett : 4:07 PM

Brett,

Your argument does not account for a significant shift in decision patterns over time. I will report just a part of the numbers to illustrate the shift.

Posner shows that when the body of decisions run from 1925-2002, conservative judges ruled in a conservative direction 55.8 percent of the time.

When the body of decisions is limited just to currently sitting judges, conservative judges rule in a conservative direction 66.9 percent of the time.

Meanwhile, the voting of liberal judges remains constant at about 50 percent across these two pools of decisions.

Your explanation does not work in connection with the notable rise in conservative voting patterns.

Brian

# posted by

Brian Tamanaha : 4:39 PM

This comment has been removed by the author.

# posted by

Brian Tamanaha : 4:39 PM

Let me get this straight...

Judge Posner claims that a judge actually following the law possesses an authoritarian personality, but an unelected and unaccountable judge ignoring the law to impose his or her own policy preferences is not.

Does anyone else see the utter absurdity of this claim?

Utterly amazing.

Posner should have stayed with his forte of law and economics and stayed far away from the koolaid of leftist pop psychology.

# posted by

Bart DePalma : 5:50 PM

brian tamanaha said...

Brett, Your argument does not account for a significant shift in decision patterns over time. I will report just a part of the numbers to illustrate the shift.

Posner shows that when the body of decisions run from 1925-2002, conservative judges ruled in a conservative direction 55.8 percent of the time.

When the body of decisions is limited just to currently sitting judges, conservative judges rule in a conservative direction 66.9 percent of the time.

Meanwhile, the voting of liberal judges remains constant at about 50 percent across these two pools of decisions.

Your explanation does not work in connection with the notable rise in conservative voting patterns.

Even assuming that it is possible to objectively define conservative and liberal legal opinions, Posner's offered differential is not difficult to explain.

Under Posner's methodology, conservatives are "legalists" who insist against all reason on following the law. Whatever else you think about "legalism," it does lead to a fairly consistent set of outcomes. Conservatives only fail to have a conservative voting record when they go off the reservation and do not follow the law.

In contrast, under Posner's methodology, liberals are "pragmatists" who have no problem ignoring the law to achieve desired "socially beneficial decisions." However, as Professor Balkin has often observes, liberals still feel bound to follow "hard wired" law which cannot be interpreted away to achieve desired "socially beneficial decisions." Thus, it is unsurprising that liberal judges have a mixed liberal voting record because, gosh darn it, some laws are too clear to ignore.

# posted by

Bart DePalma : 6:16 PM

Most of us realize that if strict adherence to our principles leads us inexorably to an offensive conclusion, that's an indicator that our principles are off and need adjustment. Not to Scalia ... .

Dilan, you give Scalia too much credit. In Herrera, no principle led him (and Thomas) to believe that the Constitution does not prevent the state from executing a person it knows to be innocent (if that person had a fair trial). The Constitution, and the framers, are silent on that; one must simply choose whether justice or injustice is an underlying goal of the Constitution. I see no explanation other than that Scalia and Thomas are motivated by a desire do evil -- to hurt those they consider beneath them; their "principles" are a superstructure built on that desire.

# posted by

Henry : 6:34 PM

Uh, Bart, your post in no way explains the differential as to why current judges are voting MORE conservatively in the past. The implication is that "liberal activism" is on the upswing, yet liberal judges are deciding no differently than they have from a historic perspective. Whereas the new wave of conservative justices is voting more conservatively than their conservative fore-fathers.

Thus, there is an argument to be made that it is the conservatives, rather than the liberals, that are voting based on political ideology and are thus, much more outcome oriented--acitivist even...

# posted by

Unknown : 11:33 PM

I'm curious as to whether any members of the federal judiciary have responded to or commented upon Judge Posner's study.

# posted by

Shag from Brookline : 6:56 AM

mike said...

Uh, Bart, your post in no way explains the differential as to why current judges are voting MORE conservatively in the past.

Because the court is the most conservative in the post New Deal era.

The implication is that "liberal activism" is on the upswing, yet liberal judges are deciding no differently than they have from a historic perspective.

Who made that implication? Today's liberals are no more likely than the Warren and Burger courts to ignore or rewrite law. There are simply fewer of them.

Whereas the new wave of conservative justices is voting more conservatively than their conservative fore-fathers.

That is because today's justices are plainly more conservative. Indeed, one can reasonably argue that many justices who were called "conservative" a generation to two ago were nothing of the kind. Rather, they were liberals but less so.

Thus, there is an argument to be made that it is the conservatives, rather than the liberals, that are voting based on political ideology and are thus, much more outcome oriented--acitivist even...

Nonsense. Indeed, even Posner recognizes the conservatives as "legalists" because of their general fidelity to the law, while calling liberals "pragmatic" because of their outcome oriented jurisprudence which feels free to ignore the law.

# posted by

Bart DePalma : 8:30 AM

Of course, there are passive authoritarians and active authoritarians. When neighbors can't settle a squabble and "take it to the judge", they're looking for an authority figure to decide for one side or the other, they're not looking to cut the baby. When judges follow stare decisis, it's passive authoritarianism to which they subscribe because they in turn will have the chance (higher court judges more frequently) to make the decisis to which others will stare. This is the kind of authoritarianism which Pope Nino approves.

Of course it is correct that judges would like to reduce stress by placing responsibility for their decisions on others, especially when they have to do something distasteful like evict a crippled orphan. When Milan Smith (CA9) whines "And the Supreme Court tells me I have to accept the state court's decision even if it's wrong," there's a large element of "please don't throw me in the briar patch."

But I digress. What is more authoritarian than Posner's own way of judging -- he decides what the outcome should be, then he manipulates the ratio decidendi to reach it. This is not pragmatism, this is pure Hobbes, Posner is the supreme egotist. If you're looking for a more principled pragmatism, Breyer is a better example -- he identifies the outer bounds established by law and precedent, then he's free to choose anywhere within that space, to further whatever objective he happens to be pursuing today.

# posted by

Anonymous : 8:57 AM

But I digress. What is more authoritarian than Posner's own way of judging -- he decides what the outcome should be, then he manipulates the ratio decidendi to reach it.

If Posner actually did this, you would have a point. But as a practicing lawyer who has read a fair number of Posner opinions, he's actually an excellent judge who tries very hard to get the law right.

I bet that Posner is as upset of the tone of the Scalias of the world (and especially of the conservative defenders of Scalia) as he is at the substance of their judicial philosophy. It's this pretense that there's only one way to decide cases, that it is really easy to do (all a judge does is "follow the law"), and that interpretative methodologies that have developed over centuries to deal with common law, statutory, and constitutional traditions, conflicting and contradictory policies and principles, and rampant and unavoidable ambiguity can just be thrown out the window because Scalia is right and everyone else is wrong.

To see this sort of rhetoric be adopted by so many conservatives (and remember Posner is nominally a conservative) many of whom really don't know any better and simply adopt the talking points of the movement is surely quite upsetting to a judge who is ideologically sympathetic to the movement but who knows that cases are very difficult and accordingly puts as much effort into his craft as Posner does.

# posted by

Dilan : 12:47 PM

Well said, Dilan.

# posted by

Michael Sweney : 12:54 PM

Bart says:

"Nonsense. Indeed, even Posner recognizes the conservatives as "legalists" because of their general fidelity to the law, while calling liberals "pragmatic" because of their outcome oriented jurisprudence which feels free to ignore the law."

How about you come up with a reasoned explanation for why my theory is nonsense? Or how about you support your position that conservative justices today are more conservative than in the past?

Even assuming you could, if conservative justices are more "legalist" and thus have a greater fidelity to the law, why would conservative judges post-New Deal decide differently than those judges now? Stated otherwise, there shouldn't be "degrees" of strict constructionism--you either honor the plain text or you don't. Given that, how about you offer up some type of reasoned basis as to why the new wave of judges are issuing conservative opinions at a greater clip than previously?

# posted by

Unknown : 2:38 PM

dilan said...

I bet that Posner is as upset of the tone of the Scalias of the world (and especially of the conservative defenders of Scalia) as he is at the substance of their judicial philosophy. It's this pretense that there's only one way to decide cases, that it is really easy to do (all a judge does is "follow the law"), and that interpretative methodologies that have developed over centuries to deal with common law, statutory, and constitutional traditions, conflicting and contradictory policies and principles, and rampant and unavoidable ambiguity can just be thrown out the window because Scalia is right and everyone else is wrong.

No reason Posner should be upset.

Article III does not empower the federal courts to create common law, so the British traditions of judge made law have no application to the federal courts. While this limit on judicial power may chafe judicial authoritarians like Posner, his upset is not the problem of Scalia and the rest of us "legalists."

# posted by

Bart DePalma : 4:20 PM

mike:

I am unsure what your argument is.

Posner's assumption is that conservatives are "legalists" because of their general fidelity to the law, while liberals are "pragmatic" because of their outcome oriented jurisprudence which feels free to ignore the law."

Assuming that dichotomy, judges are more conservative today that they were during the heyday of liberalism between the New Deal and the 80s simply because they more strictly adhere to Posner's "legalism."

As I observed above, many of the judges which Posner calls "conservatives" during the liberal heyday were in fact liberals who were less adventurous in ignoring inconvenient laws than were there more liberal brethren.

It took a concerted conservative legal movement multiple decades of work to create the intellectual underpinnings which made the recent conservative court and its more consistent adherence to conservative jurisprudence possible.

# posted by

Bart DePalma : 4:29 PM

No reason Posner should be upset.

Article III does not empower the federal courts to create common law, so the British traditions of judge made law have no application to the federal courts. While this limit on judicial power may chafe judicial authoritarians like Posner, his upset is not the problem of Scalia and the rest of us "legalists."

Bart, there are more things on heaven and earth than are dreamt of in your judicial philosophy.

# posted by

Dilan : 5:09 PM

Bart,

I believe my questions are pretty straight forward. You argument basically boils down to conservative judges are inherently not activist and apply the strict letter of the law. Liberal judges, on the other hand, focus on outcome, unless the law is just "too clear".

That being the case, there should be a consistency in both liberal and conservative justices over time. That consistency is now lacking amongst the new wave conservative judges.

It seems to me that this substantially undercuts your argument that conservative justices are not results oriented and that they adhere more strictly to the plain text of legal documents.

You posit that the change is a result of a backlash against the New Deal. Or at least it appears that you are arguing that post-New Deal, courts and judges in general were more liberal, due to the political/legal climate of the time. If that is the case, one would expect that the current wave of "liberal" judges would tend towards more conservative decision making, as the current political/legal climate has swung in favor of conservatives.

Yet, the decision making of liberal judges has remained fairly constant.

At the end of the day, you have yet to offer a credible explanation as to the trend towards more conservative decision-making by the current crop of Bush appointees.

# posted by

Unknown : 7:03 PM

"That being the case, there should be a consistency in both liberal and conservative justices over time."

Only if there were a consistency in what we've been calling "conservative justices" over time. It's been argued that what we used to call "conservative" justices were, by current standards, merely slightly less liberal justices.

# posted by

Brett : 9:22 AM

On what basis could the argument be made that liberal judges have remained largely static, while conservatives have not?

I would not call the past 15-20 years a particularly progressive period in the political/legal climate, especially compared to post-New Deal and the Great Society periods.

# posted by

Unknown : 12:27 PM

Dilan --
I refer to a speech Posner gave in DC (Press Club? think tank? I saw it on C-SPAN) about the role of the judge in national security cases. And his position was that the judge should decide whether it was reasonable for the government to do something -- in particular, to monitor communications without a FISA warrant -- and then rationalize his view. Now FISA clearly states that it is the sole means by which the surveillance it describes can be conducted. It cannot be called "pragmatic" to defy a clear statement of positive law.

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# posted by

Osman Atarci : 9:41 AM