Unfettered Judge Posner

1.

In ancient times, in the Middle Ages, and in the early Renaissance, people wrote books known as “mirrors of princes.” They would describe the life and character that a princely ruler ought to have, providing a catalog of princely virtues, and setting out tips and recipes for a princely education and the organization of a prince’s household. All of this an actual ruler could consider as an ideal, comparing it point by point with the way he ran his kingdom or principality. The best-known example of a mirror of princes is Machiavelli’s Il Principe, published in 1532, though it is arguable that Machiavelli actually intended to subvert the genre, upending as he did the list of traditional princely virtues, replacing benevolence with cruelty and fidelity with deception, and maintaining that “how one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done, sooner effects his ruin than his preservation.”

Richard Posner’s new book is a “mirror of judges”—a discussion of judicial virtues and principles for judicial education and the organization of a judge’s chambers. Of course, mirrors of princes were seldom written by princes themselves; they were written as advice to princes by clerics or scholars or political philosophers. Posner’s mirror of judges is written by an eminent judge of the Seventh Circuit—it’s as though Il Principe had been written by Lorenzo the Magnificent. Either way, Reflections on Judging is quite Machiavellian. For Posner too wants to upend our sense of the traditional judicial virtues; he wants to replace a naive ethics of adjudication with a set of prescriptions that are less formalistic, more pragmatic than conventional wisdom, and certainly more robustly realist in their character.

2.

Some of what Posner writes is presented as advice to a new judge, and much of it is unexceptionable. Judges should avoid unnecessary dissents and feuds with their brethren on the bench. They should try to get out of their chambers more and not pride themselves on an affected ignorance of the world around them. Appellate judges should occasionally volunteer to conduct trials, including jury trials, in lower courts because nowadays not all of them begin their appellate careers with district court experience. Judges should write their opinions themselves and address them to intelligent members of the public, not have them ghost-written by their clerks (who are fresh out of law school). Judge Posner has his clerks do research as all judges do; but unlike most judges and justices he insists on writing first drafts of his opinions himself and writes them in plain style rather than in the finicky citation-laden manner of a law review article.

Posner is particularly hostile to something called The Bluebook—a manual for legal citation that currently runs to more than five hundred pedantic pages, breeding “a culture of formalism, nitpicking, and manual gazing” and lending a spurious air of complexity and technical competence to cover up the judiciary’s failure to deal with real technicality, real complexity. What he calls the “internal complexity” of finicky legal technique is a poor substitute for judges coming to terms with the “external complexity” of real-world issues.

Most judges think they do not need technical knowledge about the subject matter of the disputes that come before them, like information technology or DNA or economics or prison administration or commercial competition. Judges duck and weave to avoid this external complexity. Appellate judges say they have to defer to the decisions of the courts below them on matters of fact; and in trial courts, judges often hand off the technical issues to juries, “whose ability to understand technical issues is on average even feebler than that of the judges.”

Members of the judiciary mostly think their own task is semantic or intuitive—semantic so that they can parse and interpret the rules they are called on to administer, and intuitive inasmuch as they rely on hunches rather than empirical data about what works in the real world. Any knowledge they accumulate is just knowledge of past decisions in which the same meager skill set was deployed: “An exclusive diet of Supreme Court opinions,” says Posner, “is a recipe for intellectual malnutrition.”

One clear conclusion from all this is that we need better judicial education. In our system, judges are appointed (mostly on political grounds) directly from the bar. “You are a lawyer one day and a federal judge the next.” This has its advantages, Posner believes, in fostering a less bureaucratic ethos than one sees in systems, such as France’s, where the judiciary is professionalized. But we still need to figure out ways of fostering more empirical work on the issues that judges confront and ways of making sure that it is brought to their attention and that they take it properly into account.

The work that is needed is work that will question preconceptions and shake up intuitions. There is no more vivid illustration of this than Posner’s own recent confession that a decision of his in 2007 about the legitimacy of voter ID requirements was flawed for lack of good information. Posner had written an opinion for the 7th Circuit upholding an Indiana statute that required people to produce government-issued IDs before they were permitted to vote in person on election day; and the Supreme Court in turn affirmed the 7th Circuit decision. Intuitively, a voter ID requirement seems like a reasonable way of securing the integrity of the democratic process. But as Posner now says, one also needs information about the number of citizens who lack government-issued IDs and the number who will be deterred from voting as a result of this requirement. Without those numbers—which can’t be arrived at intuitively—it is impossible to strike a proper balance between the prevention of electoral fraud and the need to protect citizens’ voting rights. And Posner pleads guilty to having made a decision he would not have made if he’d had this necessary empirical information.¹

3.

So far, these recommendations for a new set of judicial virtues sound like the voice of common sense. Sometimes it’s disconcerting common sense; always it is interesting and engaging; and if it seems radical, that’s only because of the entrenched character of some of the stupidities Posner is trying to overthrow. But there are deeper and more troubling reflections in this book—reflections that make Posner’s mirror of judges seem much more Machiavellian.

I think that if you ask ordinary Americans what they want from their judges, most of them will say they want decisions according to law and they want respect for the Constitution. They want a judiciary that will issue objective judgments based on what the legal materials require, not decisions based on the individual judge’s own best estimate of how to solve social problems. They know that federal judges, like everyone else, have their own opinions about the best way to rule and organize our society. But the judges’ views are controversial: other citizens, who also aspire to make ours a better society, hold opinions that differ from those of judges. In the midst of such political differences, the ordinary expectation is that the judge will put his own views to one side and, when cases come before him, apply the rules embodied in statutes, precedents, and constitutional provisions.

No doubt these rules are also controversial, but the controversy has been settled for the time being by the process of enactment. The judge’s job is to keep faith with enacted statutes and the Constitution and also with whatever precedents have been decided, whether he likes them or not, even when his private view is that the measures he is called on to administer are silly or wrong. To do this requires considerable restraint, particularly when the conflict is not just between enacted laws and one’s own preferences but between enacted laws and one’s own thoughtful convictions or beliefs.

All this, I believe, is what most ordinary people think about adjudication. Some of us call it the rule of law. Translated into the language of virtue, it sounds as though what we want in our judges is objectivity, fidelity to law, deference to enacted rules, and—even if judges are political appointees—a willingness to restrain themselves as far as their own political convictions are concerned.

I am afraid that, in Reflections on Judging, Richard Posner ends up rather contemptuous of this approach to judging or at least of any judicial philosophy that is organized around it. He calls it naive, lazy, evasive, and obscurantist; it’s a cover for conservatism, he says, and it makes the rational solution of legal problems much more difficult.

The contempt is not always apparent. When he was confirmed as a judge in 1981, Posner says he was asked the usual question: “You would be willing to subjugate your personal views to the statute or the law?” He implies that his response to this “easily answered question” was “yes.” Indeed he still contrives to say that in this book, but only by insisting that, as a matter of definition, everything that judges ought to take into account counts as law—a facile move that makes the rule of law into a sort of tautology. On the ordinary view, judges are supposed to take into account all, and only, the things that the legal rules tell them to take into account. So a judge in traffic court should ask: How fast was the defendant driving? What was the speed limit in this area?

But Posner is drawn to the view that judges should also take into account the consequences of suppressing speed below a certain level. What will the effect be on traffic? How competent or dangerous is the ordinary driver at 75 mph? The ordinary view says that it’s the job of the political branches to make those calculations. But the position that Posner toys with is that consequential matters like these need to be taken into account in the courtroom in deciding whether to enforce the traffic statute or not. And he says that fact alone makes them part of the law.

Now, the speed limit example is perhaps too easy. There the rule is clear and it is not unreasonable to suppose that speed limits have already been properly thought through. Posner believes that the defects of the ordinary citizen’s expectation become apparent only in cases where there is a lack of clarity in the terms of the statute, or when there is a patent mismatch between the rule embodied in an old enactment and the circumstances of modern life. Our Constitution and some of our statutes and precedents are more than two centuries old and we struggle to apply them to situations that could not possibly have been within the contemplation of their drafters.

Even with more recent enactments, Posner thinks our legislative processes are so inept and ill-disciplined that the resultant measures are often “insolubly ambiguous.” In these cases, he says, when the enactment is unclear, judges should seize the opportunity to apply their own beliefs about what makes things work well in society. Perhaps if some plausible purpose is discernible from an enactment that lacks clarity, then the judge should do what he can to further that purpose. But when the purpose is not discernible, says Posner, “then the judge is the legislator” and we need an understanding of his role that permits and encourages him to take into account everything that a wise lawmaker would consider. He calls this “realistic” adjudication—an echo of American legal realism from the 1920s and 1930s.

The object of all this is to embarrass the judge who believes in fidelity to law. What can the rule of law possibly mean when the rules are unclear? What can fidelity to law amount to when the provisions being applied are nothing more than fossils (Posner’s term for the Second and Third Amendments)? Like “What is truth?” these questions are rhetorical and Posner, like Pilate, will not wait for an answer.

But there is an answer. A judge who believes in fidelity to law will not accept that the virtues associated with that principle evaporate at the first sign of difficulty. Of course there are cases where law is unclear or ill-matched to modern circumstances. But a judge who believes in fidelity to law will try to figure out a strategy for dealing with these hard cases, a strategy that strives to keep faith with the rule of law even when it is not immediately apparent what that keeping faith requires. Many judges and quite a few legal scholars believe it is worth investing considerable time and intellectual energy in developing a general philosophy that makes sense of the judge’s obligation and maps it onto a strategy for interpreting difficult or ambiguous provisions.

4.

Posner calls such judges “formalists,” and a large part of his book is devoted to the excoriation of formalism. What is formalism, exactly? Posner is rather casual about definitions. The formalist is someone who feels bound to interpret texts in a way that is “indifferent or nearly so to the consequences of his interpretations in the real world.” The consequences may be bad, but the formalist judge can say “the law made me do it.”

Constitutional originalists are formalists: they wrestle with difficult provisions in the Constitution by asking what the framers intended by a particular clause, say, or what the language used in a given amendment would have meant to an intelligent person in 1791 or 1868. Textualists are formalists. Justice Antonin Scalia is a textualist about legislation—there is to be no reference to legislators’ intent except as evidenced in the words of their enactments—and (not entirely consistently) he is an originalist about the Constitution.² There are also doctrinal formalists, who feel compelled to follow the inner logic of doctrine in dealing with private law subjects such as torts and contracts.

Posner says that formalism is often just a cover for conservatism, which is plausible, at least, in the case of Justice Scalia. But there can be liberal formalists as well. I daresay Posner thinks that the late Ronald Dworkin was a formalist, with all his talk of right answers in the law, arrived at by the Herculean process of seeing which interpretation of a given rule makes the law as a whole the best it can be. What formalists have in common is a conviction that they have to find some way of keeping faith with what has been enacted even in cases where the enactment is difficult or obscure or where the results of keeping faith lead to consequences that the judge—as a politician—would not necessarily welcome.

So consider the decision in District of Columbia v. Heller (2008), the case in which the Supreme Court used the Second Amendment to strike down an absolute prohibition on handguns in Washington, D.C. The Second Amendment rests on a factual assumption that is barely intelligible today: a citizen militia whose members keep their militia weapons at home. And there are social dangers today that the framers of the amendment certainly couldn’t grasp: the scourge of firearms in the streets of our society and the deaths, maiming, and terror this gives rise to. A formalist judge may lament these circumstances: “We are aware of the problem of handgun violence in this country,” said Justice Scalia in his opinion for the Court, “and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” But, he continued, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

In a lengthy critique in chapter seven of his book, Posner has all sorts of criticisms to make of Scalia’s originalism as applied in the gun control case. But he reserves his most scathing criticism for the background formalism of this approach:

I don’t agree with Justice Scalia that indifference to hundreds of deaths that might result from the Supreme Court’s embracing a broad interpretation of the Second Amendment is the sign of a good judge. If deaths are a consequence of deciding a case one way rather than another, that’s something for the judge to consider along with the other consequences.

Law, says Posner, ought to be fact-driven rather than doctrine-driven; it should be alert to social consequences whether the text of the Constitution points us toward them or not.

Many readers will cheer this critique—some because they are persuaded by Posner’s realism, others because they’ll cheer anything that embarrasses Justice Scalia. But there is a certain hubris in attacking a whole array of jurisprudential approaches without saying anything to respect the impulse that drives them. And there is something unworthy about caricaturing all versions of formalism as committed to demonstrable, irrefutable right answers, without acknowledging that most practitioners of formalism are just struggling to find a way, in the midst of their difficulties, to respect the limits inherent in the judicial role. For even if we make fun of originalism, we still have to ask questions about the duty judges owe to laws enacted through legitimate political processes that have elevated to legal status proposals and preferences other than their own.

5.

I think it ill behooves Judge Posner to cast aspersions on the honorable impulse that motivates judicial formalism. After all, as he is careful to acknowledge, most appellate judges judge formalistically for most cases. (He doesn’t subscribe to the view that only difficult cases bubble up to the appellate level: many appeals, he believes, are brought through overconfidence or incompetent lawyering or because one of the parties has little or nothing to lose.) Sometimes he writes as if formalism should be the Posnerian judge’s first resort. He says: “Responsible realist judges who acknowledge and embrace a legislative function for the judiciary will confine its exercise to areas…in which formalist methods fall short.” He insists too that judges must not decide cases in ways that leave legislators not knowing what the effect of their enactments will be (“they’ll merely be producing putty for the judges to shape”). And he says that despite the recent resurgence in formalism, the two positions—realism and formalism—are moving closer together:

Nowadays references to social policy, economic efficiency or welfare, and judicial economy and administrability are considered legitimate by most judges and Justices. Even formalists acknowledge the legitimacy of bringing policy considerations to bear in cases in which a judge can’t escape having to make a choice, rather than being compelled to a result by a force akin to logic.

Yet it also seems from what he writes that, like the earlier legal realist Felix Cohen, Posner wants it to be the case that social policy and social science are deployed not as tiebreakers, “not as an emergency factor in legal argument” where there is nothing else to appeal to, “but rather as the gravitational field that gives weight to any rule or precedent, whether it be in constitutional law, in the law of trade-marks, or in the most technical details of legal procedure.”³

Posner says that “the aim of the formalist judge is to appear not to legislate from the bench,” without saying anything to make sense of this aspiration. It is not just a matter of appearances. The formalist judge does not think he should legislate from the bench because he has not been elected or appointed for that purpose. No fair political procedure has consecrated his views about what would improve society over the views of his political opponents. (Even in jurisdictions where judges are elected, they are not elected to legislate.) Not only that, but the formalist judge believes that he ought to respect the work of those who have been elected as legislators and play his part in the process of legislative implementation.

Posner, by contrast, has made it clear in other work that he has little or no respect for legislators or those who elect them: he says we can no longer think of statutes as “typically…the product of well-meaning efforts to promote the public interest by legislators who are devoted to that interest and who are the faithful representatives of constituents who share the same devotion.”⁴ And so it is understandable that he is not himself drawn to reflect on any doctrine of fidelity to the democratic process. Outcomes are everything, in Posner’s mirror, and if judges could only educate themselves a little better in the social sciences to guarantee better decisions—indeed better lawmaking from the bench—we would have less and less need for what he calls this “dubious aspect of separation-of-powers thinking.”⁵

We might even be able to blur the distinction between a judge and a framer of the Constitution. A pragmatic or realist judge, said Posner in an earlier book, “does not throw up his hands and say ‘sorry, no law to apply’ when confronted with outrageous conduct that the framers of the Constitution neglected to foresee and make specific provision for.”⁶ He does his own calculation and strikes down the law if he judges it crazy or unfair. Reflections on Judging holds up a mirror to that sort of thinking, and Posner’s defense of judges’ realism can sometimes make it seem plausible. But surely we can see why some judges find this approach anathema, and want to respect democratic processes. Posner’s book would have been more thought-provoking if it had tried to understand the jurisprudence of judges who see his realism as the mirror image of their responsibility, a clear account of principles that they should not accept.