“The law is good, if a man use it lawfully.”

—1 Timothy 1:8

Richard Posner is one of the greatest judges never to have sat on the Supreme Court of the United States.  A distinguished professor at the University of Chicago, a judge on the U.S. Court of Appeals for the 7th Circuit for 25 years, and chief judge of that Court for seven years, he might have expected by dint of sheer brilliance alone to have been elevated to the highest bench in the land.  Probably, his nomination could not have been confirmed by the Senate.  Posner once candidly observed that our law permits killing or wounding people to protect a property interest, and he has toyed with the notion that putative adoptive parents should be allowed to purchase babies on the open market.  Posner’s provocative demeanor is on display once more in his latest book.  He is surely one of the most prolific authors (if not the single-most) among sitting federal judges, having published dozens of monographs.  How Judges Think may be one of his most accessible works.  It is also one of the most intriguingly ironical, given its theme that judges not only are inescapably political, but should be.

American judges do not, Posner argues, always do what most Americans, and most American judges, believe they do: that is, apply the Constitution, statute law, and precedent to the facts brought before them, and thus settle cases with full neutrality and according to the boasted claim that ours is a government of laws, not of men.  Rather, the legal materials in many cases point in opposing directions, and the judge, in choosing among those directions, must perform a legislative or—to use the word that Posner often substitutes for legislative—“political” function.  That American judges have frequently engaged in legislative decisions will come as no surprise to anyone familiar with the Supreme Court’s behavior during the last 70 years, in which time it has rewritten the Constitution to curtail the discretion of state and local authorities, to expand the reach of the power of the federal government, to enact its own code of criminal procedure to regulate state and local police, to remove the influence of religion and traditional morality from the public square, and to discover in the Bill of Rights protections for abortion and consensual homosexual acts.

Many, if not most, of these actions could never have been accomplished by the federal or state legislatures, owing to an absence of popular support.  Thus, the undemocratic role of the Supreme Court in altering the Constitution has for decades been a rallying cry of the GOP: Republican presidents from Richard M. Nixon to George W. Bush have promised to nominate judges and justices who would “interpret” rather than “make” laws.  That is wrong, Posner claims, because our “antique” Constitution simply does not provide for the needs of 21st-century American society; its amendment procedures are too cumbersome to allow the people’s representatives to renovate it; our legislatures, dominated by special interests, refuse to take measures necessary for the common good; our political parties are too disorganized for effective action.  The inescapable task of modernizing the law falls to the judges.

So much, in short, for republican (or democratic) government.  This sacrifice does not much bother Posner, because he thinks American judges, on the whole, do a decent job of stumbling toward correct legislative solutions, an activity that he also describes as “pragmatism”—a kind of judicial “can-do,” uniquely American in spirit, which judges more or less happily conceal through the judicially agreed-upon vocabulary of “legalism,” the notion that judges are bound by constitution, statute, and precedent.  Legalism is, after all, taught in the law schools and tested on bar exams, and our judges (all of whom have been lawyers first) are adept at the subterfuge.  Legalism, for Posner, is window dressing.  The real purpose of this book is to make it possible for judges not to have to pretend.

Posner appears to be writing for his fellow law professors, pleading with them to educate lawyers who understand how judges really think and to begin, at last, to tailor their briefs and their arguments to what actually concerns them.  Good judges, says Posner, are forward-looking and want to know the consequences of their decisions, not what legislatures or courts have said about the problem in the past.  Thus, the plethora of citations to cases, statutes, and regulations with which advocates now pepper their submissions to courts should be radically revised in order to incorporate social-science data and theories from economists, statisticians, sociologists, political scientists, and psychologists into legal arguments.  This is what Posner himself has done in his books, lectures, and legal decisions over the past few decades.  It is about time, he thinks, that the profession catches up.

Posner applauds the fact that some law schools have begun to appoint political scientists to their faculties and implies that they should be joined by the kinds of “sophisters, oeconomists, and calculators” that would have made Edmund Burke blanch.  I have mixed feelings about this.  One of the political scientists whom Posner cites frequently, Lee Epstein, is a brilliant teacher and researcher and a leader of the law faculty here at Northwestern, though she has never earned a law degree.  Northwestern University has the highest percentage of tenure-track law-school faculty holding social science Ph.D.’s in the country and is in the process of requiring all of its students to take courses involving accounting, statistics, finance, and organizational behavior.  Similar developments are under way at Harvard, Stanford, the University of Pennsylvania, and several other institutions.  We are, in short, about to turn out the type of lawyer that Posner wants: legal advocates trained in the methods and insights of the social sciences.

There is more to law than social science, however.  And there is a real danger, if the legal academy rushes to embrace empirical social science, that those entering the profession will lose the sense of romance that has always surrounded the practice of law—the idea that to be a lawyer is a calling, much as the ministry or the military once was.  Public service is not absent from the world of Posner, and he does observe that the best judges still understand that.  But what is missing is a deep faith that at the core of American law there remains a body of transcendent principles of what used to be called natural law—a set of values, as Cicero once remarked, the same in Rome and Athens, universally valid all over the world and at all times, accepted by Aquinas and Aristotle, Sir William Blackstone, Thomas Jefferson, and Alexander Hamilton.  That is what Burke believed, too; and if Russell Kirk was correct, Burke’s belief in natural law is the foundation for the Anglo-American conservative tradition.

Instead of embracing the “permanent things,” Posner may see them as an illusion, and he seems to go out of his way to argue that the staunchest defenders of “originalism” in the present day, men such as Justices Antonin Scalia and Clarence Thomas, and perhaps Chief Justice John Roberts and Justice Samuel Alito, are hypocrites, if not naive fools.  And it must be said that Posner is equally dismissive of the muddle-headed principles of justices such as Anthony Kennedy, who borrows legal measures (such as the abolition of the death penalty for juveniles and the decriminalization of homosexual acts) from European jurisdictions, and Stephen Breyer, whose concept of “active liberty” permits him to stretch the Constitution essentially to implement much of the preferred policy of Senate liberals.  Similarly, Posner dismisses what he calls the “Yale School of Constitutional Interpretation,” exemplified by Akil Amar and Bruce Ackerman, which posits a power in the Court during extraordinary times essentially to amend the Constitution, in a departure that Posner correctly declares to be “completely unmoored from text and precedent.”

There is, undeniably, a bracingly brutal honesty in Posner’s thinking, while, even in his belief that judges’ work is inevitably political, he is something other than politically correct.  Of America’s most treasured Middle Eastern ally, he writes:

Israel is an immature democracy, poorly governed; its political class is mediocre and corrupt; it floats precariously in a lethally hostile Muslim sea—and it really could use a constitution.

Posner expresses these remarks in justifying the behavior of Israel’s Supreme Court Justice Aharon Barak, who made constitutional doctrine out of whole cloth, an expedient Posner suggests might have been necessary in Israel at the time but is indefensible here in the United States.  Apparently, there are limits to what Posner believes politically adept, socially scientific, pragmatic American judges can do, although he never clearly delineates those limits.  He hints, though, that there are times when “pragmatism,” his preferred judicial strategy, dictates adherence to “legalism,” the belief in the rule of law.  Perhaps if he listened harder, following the example of his hero, Justice Oliver Wendell Holmes, Jr., Posner might hear an “echo of the infinite, a glimpse of [law’s] unfathomable process, a hint of the universal law.” 

 

[How Judges Think, by Richard A. Posner (Cambridge and London: Harvard University Press) 387 pp., $29.95]