Richard Posner has been a judge on the United States Court of Appeals for the Seventh Circuit in Chicago for the last thirty years. He is the author of many books including, most recently, The Crisis of Capitalist Democracy. Eric J. Segall is Professor of Law at Georgia State University College of Law. The following discussion took place during the last year.
Eric J. Segall: In your book How Judges Think (2008), you wrote that traditional legal reasoning, meaning reliance on text, precedent, and history, does not resolve difficult appellate cases. If judges are not introspective, their candor will not illuminate the actual springs of their decisions. Can you describe in more detail what you mean by “the actual springs of decision” in hard cases?
Richard Posner: If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.
EJS: What you said, “fool themselves,” leads me to a follow-up question. In your writings I think you are a little unclear on how much of this “fooling themselves,” as you just put it, is intentional and how much is not. For example, the Supreme Court cases interpreting the Eleventh Amendment, which defines when states are immune from being sued. The decisions in those cases are completely inconsistent with the clear text of that amendment, which says that states cannot be sued by citizens of another state; and yet so-called textualists like Justices Antonin Scalia and Clarence Thomas have supported that countertextual interpretation, holding that even suits by citizens of the same state as the state they are suing are banned by the amendment, despite the word “another.”
RP: I don’t think much of it is intentional. People want to avoid what psychologists call “cognitive dissonance,” which means holding inconsistent views simultaneously, such as that one is just applying the law and that one is making up the law as one goes along. It is an actor’s adage that no person is a villain in his own eyes. We were taught in law school what we are supposed to be doing as judges—apply the law, not make it up. So I don’t think that there is a lot of cynicism in judges.
In the case of the Eleventh Amendment, for example, I think that judges such as Justice Scalia honestly think that it has a nonliteral meaning that is implicit in the Constitution. But to treat it as implicit in the …
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The Mind of Justice Scalia October 27, 2011