Richard A. Posner is a circuit judge of the Seventh Circuit of the United States Court of Appeals, having been appointed by President Reagan in 1981. Judge Posner is also a renowned academic lawyer having published more than forty books on various aspects of the law and its relationship to other aspects of society and other disciplines. He still teaches at University of Chicago Law School. Judge Posner is an influential proponent of the law and economics movement and is credited with having been influential in changing the way anti-trust legislation has been applied by United States courts.
As its title suggests, How Judges Think is meant to be descriptive not normative. Nonetheless, across its 377 pages, Judge Posner does manage to articulate a number of his strongly held opinions about how the world should be as well as how it is.
Posner is a virtuoso academic lawyer. One feels that he sits down and bangs out 20,000 words before breakfast and puts in most of the footnotes by heart. Since he has written on most subjects legal, he can on many occasions cite his own books and articles for most propositions. At the same time, one feels that he has a working knowledge of most other leading writers in the same areas at his fingertips and can draw upon them with equal felicity. Even for a non-academic working lawyer like the present reviewer, the text reads with similar ease. Posner writes beautifully on subjects of some difficulty.
The thesis of How Judges Think carries a degree of complexity. As the lawyer economist, Posner is concerned with constraints that operate upon judges as they work. While the external constraints are minimal compared with some workers in their workplaces, the internal constraints are important. Judges want to be perceived by their fellow judges as “good judges”. Being perceived as a political judge is the antithesis of being perceived as a good judge. Accordingly, judges write their reasons as if their decisions were simply the result of a logical reasoning process commencing with already established doctrine comprised by statutes and decisions binding on the judge. When argument by analogy is used, the reasons suggests that the resulting decision is inevitable when, in fact, the use of analogy is a process contingent both on choice of analogy and a process of weighting the points of similarity and dissimilarity between the facts of the analogue fact situation and the facts of the judicial problem being encountered. Thus, judges justify their decisions on the basis that they are legalists using the processes of legalism.
As it turns out, most of the decisions that judges make apply the processes of legalism. However, legalism only correctly describes the reasoning processes in the easy, straight-forward cases where, indeed, existing rules determine the result of the case. In the more difficult cases, existing doctrine does not cover the problems presented by the case. Here, judges have a choice. Posner’s thesis is that, in these more difficult and more important decisions, judges apply their policy preferences and so are making political choices to solve the problems presented by the case.
Posner points out that the political choices being made rarely involve partisan politics and nothing more. Sometimes, the choices involve policy choices that lie so clearly in the uncontroversial mainstream that they may be passed off as common sense choices. Sometimes, the policy choices go more to the well-being of the judicial structure within which the judge works rather than the substantive issues of the dispute. For example, a judge may find that a dispute is covered by an existing rule so as to keep the law settled in an area than find an exception that may lead to uncertainty and a period of greater disputation. At other times, the policy choice made to determine the dispute may involve substantive philosophical questions about the way in which society should be arranged or regulated.
Posner considers that the way in which judges behave derives from the circumstances in which they do their work. His focus is on federal appellate judges in the United States. However, to test his propositions, he surveys judges working in other systems including European judges working in the civil law system where legislation is much more detailed and judging is a career occupation commencing from a relatively young age. He also considers other common law systems such as the United Kingdom; state judges in the United States (many of whom are elected and subject to face re-election to maintain office); and first instance federal judges in the United States. In each system, the circumstances of employment affect the way in which judges carry out the judging process.
Justices of the United States Supreme Court operate in a very different environment to that experienced by judges of the Circuit Courts. Supreme Court justices are not susceptible to having their decisions overturned. Supreme Court justices also face a greater proportion of decisions where existing legal rules fail to indicate the correct decision. This is exacerbated by the Court not being bound by its own previous decisions. The political content of Supreme Court decisions is also influenced by the number of decisions of a constitutional nature which come before the court. Because of the vagueness of the provisions of the US Constitution, the guidance it provides as to the way in which it should be applied is much less even than many US statutes which are, themselves, much less detailed and prescriptive than corresponding statutory provisions in parliamentary polities such as Australia, the United Kingdom and New Zealand. The result is that the Supreme Court is unambiguously a political court.1
Posner devotes some time to demolishing other explanations of judicial behaviour, particularly, in respect of Justices of the Supreme Court. His rejection of legalism as an explanation places him most frequently in conflict with Justice Antonin Scalia who is both a legalist and a sometime originalist.2 Posner also challenges the constitutional theory of Justice Stephen Breyer who is often touted as a pragmatist in his judicial approach. The nature of Posner’s challenge is that, very frequently, Justice Breyer’s decisions are not pragmatic but are driven by deeply held ideological views. In the same tone, Posner points out that Justice Scalia departs from both legalism and originalism in favour of his own deeply conservative ideology when it suits him.
Posner also points out the complexity of tracking the ideological content of decisions of Justices of the Supreme Court. Particular Justices will vote against decisions which seem to be against their personal views. However, on a deeper analysis, one will find that the decision is driven by a desire to support a procedural approach which would favour substantive results in other cases which involve even more deeply held ideological views.
On constitutional interpretation, Posner appears to become normative rather than descriptive. His favoured approach is, indeed, a form of pragmatism. He considers that the Supreme Court should favour, in the first instance, social experimentation by governments at state, local and national level. The results of such experimentation can then be monitored through future decisions. If the results of legislation do, in fact, produce results which offend against the values seen to underlie the constitution, such legislation may be ruled unconstitutional at a later stage to the extent that it produces those results.
I have some problems with this otherwise attractive version of pragmatism. Surely, in using phrases such as the eighth amendment’s “cruel and unusual punishment”, the Constitution cries out for an interpretation based on belief rather than social experimentation. While a series of botched executions might convince one that a particular form of capital punishment was cruel and unusual, the question whether capital punishment, itself, is cruel and unusual can only answered by recourse to deeply held ideological beliefs.
Posner is critical of Supreme Court Justices placing significant weight on the decisions of overseas courts. I am a little surprised by the vehemence of his views on this subject. Posner freely accepts the lack of assistance provided by the text of the United States Constitution in solving constitutional questions that come before the Supreme Court.
Posner also accepts the ideological component of Supreme Court judging. He also points out, correctly, that some foreign judicial decisions on subjects that also come before the Supreme Court are influenced by the particular social, historical and political context in which they are made. He also uses a convenient argument that there are many foreign courts and that it is cherry picking to choose those decisions which favour one’s own ideological solution to the problem currently being faced.
This reviewer takes the view that there is a great degree of commonality between the societal experiences of countries which share a common law background as well as differences. It is also true that countries in western Europe have shared both values and experiences with the United States over the last seventy years. Problems such as the appropriateness of capital punishment; the control of fertility of persons with intellectual disability; and the relationship between the state and religion and many others arise in circumstances where constitutional provisions often provide little assistance. Such questions have to be thought through from a consideration of basic values. This is the same process which the Supreme Court Justices have to undertake. The results of such a consideration must be helpful to judges of another jurisdiction facing similar questions. While another judge in another jurisdiction is free to reject both the results and the process of reasoning, principled agreement or disagreement with such decisions is likely to result in a more carefully reasoned and well thought out decision.
I find some difficulty in understanding Posner’s hostility to United States judges drawing upon foreign jurisprudence including in constitutional matters.
Posner is at his most trenchant in his criticism of the legal academy for its failures in undertaking research addressing the performance of judges. The criticism allows that law schools contribute by analysis of substantive legal questions. Posner also praises empirical research which analyses results of decisions by reference to, for example, whether they were appointed by a democratic or republican president. The failure of which Posner complains is the type of research and analysis to which How Judges Think is, itself, addressed. The leading scholars of the leading law schools, according to Posner, assume that judicial decisions apply legalist methodology. This has the result that academic critiquing of judges is done without attempting to identify the real issues at stake in the decisions and without attempting to understand what judges were really doing. One result is that judges take little notice of what academics write and the academy fails to contribute to truly assessing and improving judicial performance. If professors understood and examined the real questions at stake, they could assist judges, for example, by pointing out that the intended effects of a legal doctrine, either old or newly coined, are different to what ensues in reality.
A most interesting by-product of these academic deficiencies is their impact on the teaching of advocacy. Posner contrasts current teaching of advocacy with a past of some decades ago when many law teachers were part-time and worked as trial lawyers or judges and students were taught techniques which emphasised to judges the beneficial consequences to the law of a decision favouring their client in the particular case. In contrast, today’s law schools turn out lawyers who know only how to cite precedents and who provide little assistance to judges in identifying and deciding the fundamental questions which are at stake in the difficult cases.
One suspects that Australian law schools teach much more substantive law than advocacy and that most Australian trial lawyers pick up techniques of advocacy where and when they can. One suspects also that Australian judging displays a greater proportion of legalism (as opposed to policy content) than judging in the United States. This is because Australian parliaments, on the whole, are controlled by disciplined single party governments and pass legislation in largely the same detailed form as they receive it. Australian legislation tends to be written by public servants and passed by politicians with relevantly little change. It appears that, in the United States, legislation is much more the result of compromise among numerous sets of politicians with less detail and greater ambiguity being two of the results. In turn, United States judges, especially at the appellate level, are called upon much more frequently to fill in the gaps by making decisions with the high level of policy content to which Posner refers.
The lesson for advocacy is still relevant. Advocates should still try to divine the underlying policy component of legal rules and should seek to present their client’s argument in terms that will advance those policies. It is never good advocacy to suggest that your client should win merely because a legal rule says that she should.
I had seen references to the work of Richard A Posner on many occasions. It took a gift from the publisher of one of Australia’s most respected and read legal magazines to cause me actually to read one of his works. I am much pleased that I have. How Judges Think is enlightening and entertaining. Most of all, it stimulates thought and reflection. I highly recommend it.
1. The Wikipedia entry for Judge Posner is here. The University Of Chicago web page is here.
2. Chapter 10 of How Judges Think is entitled The Supreme Court is a Political Court.
3. An originalist argues that the Constitution should be interpreted as far as possible in line with the way it was understood at the time of its being written. An interview with Justice Scalia discussing originalism is discussed here.
