How Judges Think

First run at [...] How do judges think? --a question as daunting as Freud's "What does a woman want?" Judge Richard A. Posner, who has been hailed not without reason as the greatest legal mind in America today, tries to answer this vexing question. A judge of the United States Court of Appeals for the Seventh Circuit, Posner is distinguished for his pragmatic judicial philosophy and his application of economic cost/benefit models to judicial decision-making. A prolific and brilliant writer, Posner has written in "How Judges Think" perhaps his most relevant work for its profound, and sometimes polemical, insights into the judicial process. How do judges really decide cases? Is it simply by declaring the fair meaning of the Constitution or of a statute? Is it simply a syllogistic process where the facts are the major premise, the law is the minor premise and the conclusion flows mechanically from the formula (defendant robbed a bank; conduct is illegal; therefore defendant is guilty)? Or is there more to it than that, at least in non-routine cases where the interpretation of the law is non-obvious and requires some understanding of what the legislature was driving at. Posner begins by positing that if legalism (the "fair reading" approach) does not exist, then everything is permitted to the judiciary--even the power to legislate. But, he observes, some legalism DOES exist. Accordingly, judges in non-obvious contexts such as the interpretation of the Constitution, an 18th century document declaring the values for what must now govern a modern and increasingly digital society, must decide cases based on what he calls an intuition--a subtle indication based on the judge's background, experience, psychology or politics. As Holmes put it "the decision will depend on a judgment or intuition more subtle than any articulate major premise." So, Posner concludes unsurprisingly that the Supreme Court of the United States is a political court, as most of us knew intuitively anyway. Justices tend to vote largely in conformity with the politics of the Presidents who appointed them. Liberal Justices appointed by Democratic Presidents tend to side with criminal defendants (except in white-collar cases), consumers, small business people, unions, civil rights, environmental and other tort plaintiffs--in short, the forgotten man in society. Conservative Justices appointed by Republican Presidents take the opposite view. Do they arrive at their conclusions simply by accepting or rejecting the "fair reading" approach? Posner argues not. He sees legalists like Scalia, just as pragmatists like Breyer, interpreting the Constitution the way they would like it to be when a fair reading of the document or a rigid adherence to precedent is maladaptive to contemporary conditions or drives them to an unwanted result; e.g., Scalia's vote in the recent campaign financing case. As Judge Learned Hand put it, "there is no surer way to misread any document than to read it lite

If you have been inside the world Judge Posner writes about, you will know how extraordinarily practical this book is. This is how judges think - not how they think they think. Legal decisions arise in real contexts and judges almost always react in part to that context. If they did not, then our law would be the same as it was in 1242. Posner illuminates the pragmatic truth clearly while providing ample theoretical background for the budding philosopher. At a time when the merely thoughtless insist that the "law be applied as written" (how, exactly, does one apply the phrase "equal protection" as written and divorced from context?)this refreshing burst of candor and common sense presented by the greatest legal mind of the past 50 years is critically important reading.

This man is *cold*. Fortunately for the reader, it is this icy wit that makes reading Posner's books such a joy. Watch how he rips into inconsistencies: 'In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court "noted the lack of `concrete' and `actual or significant' evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way." He does not require that there be "concrete" and "actual or significant" evidence that homosexuals are harmed by the exclusion. Nor is he bothered by a lack of concreteness when he says that "laws that establish a broadcasting spectrum [must] guarantee that the full spectrum of opinion in the community will be heard." What is "the full spectrum" of opinion, and who is to decide? Must every lunatic have access to a broadcast studio? Beatty contends that government has a constitutional duty to subsidize religious schools but "may make funding conditional on religious schools agreeing to teach the same curriculum that is used in state-run schools." If the curriculum is identical, in what sense are they religious schools?' (internal footnotes omitted) The point, here as throughout How Judges Think, is to drive a spear into the side of judicial and scholarly hypocrisy. The particular target here, Beatty, is no more or less hypocritical than the rest of us: judges and legal scholars, as much as anyone, pretend that their opinions are more than just opinions. Judges -- especially Supreme Court Justices -- have a fancy term for this, which we as Americans have come to sanctify as The One True Way Of Judging. The fancy term is `textualism' or `originalism' or (as Posner calls it) `legalism.' Legalism is meant to keep the judges out of judging: they're supposed to read the facts of the case, read the relevant precedents, read the text of any relevant statutes, maybe read the legislative history, then decide the case syllogistically. A judge becomes an automaton lacking independent will. This is supposed to keep politics out of the court, and keep us closer to the ideal of "a nation of laws, not men." The law, after all, shouldn't depend on who's enforcing it. This isn't the way actual judges or actual courts work, says Posner; he spends the next 350 pages crisply and efficiently taking down any number of legalist conceptions of judging. He replaces them with his own description of how judging actually works. Judges also don't spend much time at all deliberating -- at least not in groups. A judge may be internally conflicted over a case, and at times he may actually change his mind on the basis of what others say. But not normally. Normally -- like poor Mr. Beatty, above -- he's either deliberately or subconsciously deploying judicial reasoning, or the appearance of judicial reasoning, in the service of what he already believes to be true. The ultimate source of judicial opini

I found this to be a very significant volume by Judge Posner, since he is writing on several of his strongest areas--legal philosophy, American judges, and theories of judicial decision-making. As the title indicates, this is an enormous topic and even to cover all of Posner's topics in a brief review is impossible. But this is what he is up to: First, he wants to review existing explanatory theories of judicial behavior: the attitudinal; sociological; economic; organizational; pragmatic; legalistic; and policy choice. Posner here seeks to demonstrate that no one of these theories can wholly explain judicial behavior, and that some other approach he suggests is better suited to do the job. Posner is quite a creative fellow, extremely well versed in a variety of literatures in addition to the legal. For example, he discusses judges as workers in the judicial system, quite an innovative approach. Next he focuses on judges as "occasional legislators" and what ideology a legislating judge employs. Unconscious preconceptions and intuitions are major topics in this discussion. Posner then shifts to what external and internal constraints limit judicial freedom of decisional action, including precedent, tenure and salary issues, and internal constraints (what we political scientists refer to as "role theory" and small group analysis). Along the way he takes some effective potshots at folks such as LLoyd Weinreib (who argues analogy as the key to legal analysis), the legal process school, "neutral principles" and the Scalia approach to constitutional interpretation. Interestingly enough, law professors are not a major constraint, because they have segregated themselves out of studying and interacting with judges. This is one of the most perceptive chapters in the book. By chapter 9, Posner is zeroing in on one of his favorite topics--pragmatic adjudication. He argues that pragmatic policy concerns often are the best device for explaining judicial actions because Posner believes these considerations should guide judges. Of course, Judge Posner has written literally reams on this topic, but I found this one of his best discussions. Finally, Posner targets the Supreme Court, "a political court" as he terms it. The limited impact the Court has in policing the Courts of Appeals constitutes an interesting theme here. Posner follows this up with a fine review of Justice Breyer's "Active Libery" and a fascinating discussion of what he terms "judicial cosmopolitanism," or how much foreign legal concepts should play a role in American judicial decision making. This chapter includes highly critical discussions of Beatty's "Ultimate Rule of Law" and Israeli CJ Aharon Barak's "The Judge in a Democracy." Posner can throw critical right jabs with the best of them. This is a very long book (at around 377 pages). But is it packed with thought stimulating material and arguments, as well as exceptionally useful bibliographic references in the notes (which