Monday, October 20, 2008

How to Describe Judge Posner

Stephen Griffin

Tuesday's NYT has an article on criticism of DC v. Heller from "the right" or "conservative judges" and the two examples are Judges Posner and Wilkinson. The article doesn't appear to call Judge Posner a "conservative" but definitely locates him on the right.

With respect to Posner's views on constitutional interpretation, I've often wondered whether standard left/right, liberal/conservative categories are helpful. Posner describes himself as a pragmatist, but this term provides no hint of how alienated Posner is from anything resembling standard or traditional methods of constitutional interpretation. In this respect, Posner's opposite number is not a usual liberal suspect like Laurence Tribe, but Philip Bobbitt, who argues for the value of multiple modalities of interpretation.

Posner won praise from liberals for criticizing Robert Bork's originalism when Bork was nominated for the Court. But what liberals tend to miss about Posner is that he feels the same way about all proposed methods of interpretation, whether they are based on text, history, structure, doctrine, common law tradition, it doesn't matter. All have to swim in the same acid vat of Posnerian skepticism. You could accurately call Posner a radical if he appeared to understand the techniques of interpretation and rejected them wholesale for good reason. But Posner rarely tries. Standard constitutional arguments leave him cold.

So is this "conservative?" Certainly not. Posner has rarely mentioned anything worth conserving in the American constitutional tradition, except perhaps Holmes. Is it on "the right?" If the right typically rejects all forms of constitutional interpretation as meaningless from a pragmatic point of view, then yes. Otherwise, we should appreciate that Posner writes from a perspective on American constitutionalism that is virtually unique.


Could you (or anyone else) point me to some good, preferably brief, examples of Posnerian skepticism? The only thing I've read by him is Barnett v. City of Chicago.

I agree. I don't see Posner's pragmatism as having any political valence. I think Posner's early law & economics work, coupled with his (abandoned) principle of wealth maximization, caused people to pigeonhole him as a conservative (not mention his nomination by Reagan and his battle royale with Dworkin).

Any time spend with his scholarship or judicial opinions would quickly wipe away the conservative tag.

Moreover, I think his empiricism leads him to "follow the evidence" for the best policy--a move that will lead in opposite ideological directions. Sadly, this is also why he never made it to the Court. It would have been fascinating to see Justice Posner with *no* precedential restraints.

Posner is an "economic liberal" who sees the rule of law as nothing other than a subset of economic policy. And the rule of law to him is the rule of judges. Democracy however is not the rule of law but the rule of argument.
Posner's philosophy is asocial and atomistic. His descendants include many who ascribe to the atomism but try to reconstruct the social within the limits of atomism. An example of such a hybrid would the eccentricity of Ian Ayres.

Posner's ideas are the logical conclusion of the logic of justice as contract, as market contract: a moral esthetic of non-contradictory order. He imagines a society of one telos. Democracy is founded on the assumption of many teloi. His theories are fundamentally anti-democratic. They are "machine fascism" posited as freedom in that we can in ideal circumstances choose what kind of machine we want to be.

Democracy as the culture of language in use; of argument over the meanings of words and things. Posner says he has answered certain questions, and he thinks he has the right to speak for others.
Economic life is a subset of social life. Posner argues it is the reverse. He s wrong on the facts.
But his philosophy is more dangerous to the country than born again christianity and "young earth" creationism.

Oral argument in Pearson v. Callahan, Oct. 14, 2008 (laughter omitted):
JUSTICE BREYER: ... one of these opinions is written by Judge Posner, and he's the smartest man in the world --
JUSTICE ALITO: He knows everything there is to know about law and economics and jurisprudence and literature and many other subjects.

I find Posner extremely dangerous, especially in his views about national security. In a lecture, he said that his approach is to decide if a particular tactic is desirable to deploy against terrorists, and then justify it. His intellectual arrogance, his belief that he is a philosopher-king entitled to posit first principles and reason from them to his conclusion, is as bad as the anti-intellectual arrogance of Clarence Thomas and his belief that his grandfather knew everything.

This is standard NYT point/counterpoint - left and further left. They figure that anyone just to the right of the NYT editorial page is a mainline conservative and anyone who is an actual conservative is a complete freak reserved for a couple affirmative action slots over in the op-eds as entertainment.

Why does anyone take this failing partisan rag seriously as an objective news source?

I realize that Steve's very interesting post is about Posner, but one might also note that Liptak devotes equal time to Judge J. Harvie Wilkinson's savage critique of Scalia's opinion. I assume that no one will deny that Wilkinson is a conservative or assert that the NYTimes is untrustworthy in labeling him so.

Posner is really sui generis. Some years ago, I suggested that he was basically a "righti-wing crit," though, ironically, crits take (or, if you think the movement is dead, took) doctrine far more seriously than does Posner.

I think Sandy is on target. Certainly much of what Posner writes sounds "crit-like."

Griffin passes up the shout-out:

“Neither of the two main opinions in Heller would pass muster as serious historical writing,” Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued.

For that matter, he didn't link the article.

Oh, and Professor Levinson was quoted as well, pointing out that a parliamentary system of government would've redressed the problems in the Court's ruling.

Posner's is a strain of post war american Jewish rationalism, from the right. Chomsky would be his equivalent on the left. Both are at their best regarding matters of logic and simple facts [revising my first comment somewhat]. Posner on Scalia is as sharp as Chomsky on American foreign policy. They differ on values. Though neither of them are willing -perhaps capable- of articulating anything on that subject beyond platitude, Posner is willing to see himself as embodying a form of abstract reason a variant of which Chomsky only claims to represent. But they're both Cartesian to the core.

It's significant that legal theory Rawlsian and otherwise sees language through the prism of civil contract and an ideal of reasoned decision-making. But the heart of law and language in our moral system is in the vulgar theater of the criminal courts. Legal philosophers defend ideas they believe in. Defense attorneys defend people they don't believe in at all. They don't defend truth, they defend their clients.

Our criminal court system is built not on fantasies of the human capacity for reason but on an empirical awareness of our capacity for unreason: for failure. That's the response to Posner, and its staring you and him in the face.

What's the proper relation of the courts to the legislature to the executive? Tension.
Of the prosecution to the defense? Tension.
Of the government to the press? Tension.
Of experts to the people? Tension.
That's the only "right" answer in a representative democracy.

@D. Ghirlandaio: Nicely put. "Tension" indeed.

My beef with Posner is probably ill-formed, certainly inadequately researched. I believe it was Posner who suggested a corporation faced with a $10 fine or a $100 cost of compliance has a duty to break the law. This strikes me as a slippery slope, but perhaps the actual argument was more nuanced.

You have certainly made me curious to read Posner's take on Scalia.



"Posner's is a strain of post war american Jewish rationalism, from the right."

Huh? Yes, they're Jewish, but what does that have to do with their ideas?

I'm the product of that world: secularized jewish intellectualism in the service of reason, with a tension between the intellectualism of the humanities and of the sciences. Chomsky didn't begin with contempt for Skinner but for Freud, more importantly for what Freud tried to describe. Both Chomsky and Posner defend a theory of rational action. Their works function as products of "Baroque" academicism or "Late" Modernism -as products of their age- though as Cartesians neither would allow that descriptions using the terminology of history should be seen to apply to their ideas.

Norman Mailer, Philip Roth, Woody Allan, or Larry David for that matter would never be so arrogant.

Today's LATimes has an interesting editorial on this NYTimes article, including its views on originalism. As the editorial suggests, Scalia's attention will be drawn to this conservative tension. So we should expect Scalia's Mt. Etna to spew soon. And Thomas promises to follow. Pulling rank, however, will only prove them rank.

Scalia posits himself as the humble servant of higher authority: the text, the church the state etc...
Posner is the technocrat and servant of logic.
One filters authority through a sense of the theater of social function, the other is indifferent. One is popular, one is not. It's the authoritarianism of the priest vs the authoritarianism of the technocrat. With Posner you just have to go a little deeper to find the deus ex machina.
I prefer Scalia because he understands the social function of language. You can argue with a fundamentalist over interpretations, because whether he will admit it or not, he is interpreting a text and the text in this case is public and in the common language. You can argue democracy with a someone who holds a conservative interpretation. You can not argue with someone who claims only logical structures in esoteric form.
A government by technocracy is not democracy. It's the pseudo-science of authoritarianism. cf. the "Brights" and "New" atheists.
Technocracy like the military is an authoritarian order that must be seen to serve democracy, not the other way around.
Too many people do get this obvious point.
We need more literary critics reading law. If words have meanings, so do structures. "The passive voice" carries meanings. Posner is another rhetorician against rhetoric. That's the contradiction.
Language is rhetoric. Democracy is language in use.
This is all really really basic stuff in the history of ideas.

The question is not, "Is Judge Posner a conservative," the questions is, "Is Judge Posner a lawyer?"

Neo-conservative might better capture Posner.

Unlike "heritage conservatives" he does not revere the past for the sake of revering the past. But, on key dimensions of conservatism within the judiciary, like deference to hierarchical authority in society, his results are more conservtive than liberal.

Desire vs Convention.
There are right-wing Conventionalists and Left wing, depending on whether they see it as rooted in the people as a whole or the elite. Edmund Burke or William Blake. The rule of law is conventionalist and one of the early leaders of the ACLU call it "a conservative institution." Guilds, unions and workingmens' associations are conventionalist. Academic liberals these days are not, and are less and less aware that they could ever be anything else. But the arts are conventionalist. The wishful arts of individualism and desire, the arts of wishful thinking, operate as illustration: Ayn Rand is art for political scientists, cranks and the desperately mobile.
And Paul Krugman and Newt Gingrich both got their start with Isaac Asimov's conceptualist dime-store "Foundation Trilogy."
Enough is enough. I keep thinking I'm trying to have a conversation. I've been having a conversation with myself for 25 years.

@D. Ghirlandaio, don't stop. I'm interested in this conversation. I'm particularly interested in anyone who can call Rand's work "art". ;) (Although "Anthem" was a decent read for middle school. That's probably her high water mark.)

Ayn Rand wrote Kitsch. The "art" of content and intention is kitsch.
Arno Breker and Soviet Socialist Realism. The art of wishful thinking, more precisely of wishful demanding is kitsch.

@tray: to answer your question, you might try "Against Constitutional Theory," 73 New York University Law Review 1 (1998). The "Problems of Jurisprudence" book is also a quick read.

The Problems of Jurisprudence is not what I'd call a "quick read," but it does reveal that Posner has a principled basis for his interpretation of law. Skepticism is not a theory, but pragmatism is.

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