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 Constitution is of course a departure from literalism—from the mechanical application of authoritative text to resolve legal questions. But Justice Scalia has called himself a halfhearted originalist, in recognition that a judge has to make compromises with orthodoxy and be realistic, at least on occasion.
EJS: It sounds like Justice Scalia is willing to make textual and historical compromises for federalism cases like those involving the Eleventh Amendment, but he is rarely willing to make those compromises for individual rights cases. I don’t know where that distinction comes from.
RP: Yes, I think that is true. It is interesting what he said in the oral argument in the McDonald case (the 2010 Second Amendment case involving Chicago’s law prohibiting handguns in which Scalia held that the Second Amendment applies to the states). He said that even if hundreds of people die as a result of his interpretation of the Second Amendment, that would be irrelevant to the correctness of the decision. But obviously he doesn’t think of himself as a callous person.
EJS: If Justice Scalia were here and we asked him, “Why do you privilege federalism background principles but not individual liberty background principles (such as in the abortion and gay rights cases)?” he would give his answer, and you and I would agree that it is a political answer. It may be right or wrong but it is political. And I am trying to figure out how a man that smart—I am not just picking on Justice Scalia—how any justice could disagree that such a legal interpretation is inherently value-laden.
RP: I am sure he sincerely believes that he is just applying the Constitution in good faith. He is a good lawyer; he is a very good writer; he has real flair for judging, as I noticed long ago when he was a court of appeals judge. But I don’t think he or anyone can actually derive results in difficult, emotionally charged cases from the constitutional text. Still, I am sure he tries, and in that respect is unlike another very influential justice, William Brennan. Brennan was a very nice person and a very good boss [Judge Posner clerked for Justice Brennan]. But he was indifferent to what was in the opinion; he just cared about results. He had been a very good judge on the New Jersey Supreme Court. He had legal analytic abilities. He just didn’t care about them as a justice of the US Supreme Court.
It wasn’t that he was that radical. He never gave me the impression of feeling that strongly about the issues, but he was liberal and in tune with Earl Warren and I know he reacted very negatively to Felix Frankfurter. Frankfurter had been a teacher of his at Harvard. He said Brennan had been a good student but not a great one. Frankfurter was on the Supreme Court when Brennan was appointed and was, I think, condescending toward him. I thought that was a factor in Brennan’s constitutional liberalism though of course not the only factor.
EJS: Do you think Justice Brennan would agree with your descriptive account of the Court as a “political court”?
RP: Yes, I think he would agree. It was his strength that he was very quick to compromise with the other justices. This made it much easier for him to get a majority than it would have been for more “principled” justices. I had a funny experience with him once. I wrote an opinion and he’d made a few changes in it but nothing major. My wife and I went off to visit her parents for a few days and when we came back there was the opinion in page proof on my desk and I went to Justice Brennan and said there is a big chunk missing from it, so that now the two halves didn’t go together anymore. He was a little embarrassed and said that Justice Black had come to see him, didn’t like that part, so he cut it out. That was that. That was his strength because if he had refused to accede to Black’s wishes, who knows what would have happened?
The justices are all different. Frankfurter was a big self-deceiver. He was a very brilliant person and a passionate apostle of judicial restraint, but there is a famous article by a political scientist—Harold Spaeth—that systematically examined Frankfurter’s opinions reviewing decisions by administrative agencies and found that somehow Frankfurter always sided with business against labor.
EJS: I find that most law professors are unwilling to say that the Supreme Court is a political court. Why do you think that is and how can we change it?
RP: I think there are a couple of reasons. In the case of judges, I repeat that people don’t like to think of themselves as hypocrites or villains. But another thing that a judge will say—and I would agree with this to a degree—is that judicial opinions are public documents and public officials can’t be as candid as private persons. There is an accepted rhetoric of judicial expression, and judges have to write that way. They are protecting the authority of the judiciary by avoiding excessive candor. Law professors don’t labor under that constraint. Their problem is that what they are comfortable with discussing is legal doctrine and not judicial psychology or political science.
In law school I had no idea that Supreme Court justices didn’t always write their own opinions—that often they delegated the opinion writing to their law clerks. I didn’t dream of that because the law professors didn’t give the students the faintest glimpse of the realities of the judicial process. In defense of that they could have said that if they induced premature cynicism on the part of the students, the students wouldn’t learn the tools of their trade and so wouldn’t be effective lawyers. It may be good for the students to believe that these doctrinal niceties are really critical to judicial outcomes. Law professors these days are somewhat more candid about the judicial process but tend not to examine or teach it realistically.
EJS: Can I ask you on this point, how important is transparency to the rule of law? When the Court decides issues that divide the nation, it often comes forward with an opinion that is not transparent at all. I think that is a threat to the rule of law because government officials are imposing their will in a coercive way without explaining honestly why they are doing it, without being transparent. Do you agree with that?
RP: I agree in part but an example of a necessary hypocrisy is Brown v. Board of Education. It was obvious to everybody that what was wrong with public school segregation was that it was an integral part of a system of apartheid. The Supreme Court didn’t want to say that, I am sure at Justice Black’s urging because he had a sense of how the South would react. So the Court put it in terms of the educational benefits of integration, which was fine—probably it was necessary to achieve unanimity. But the implication was that it might be fine to segregate drinking fountains because drinking fountains are not important like education.
But then the Supreme Court without explaining how one gets from education to drinking fountains declared all forms of public racial segregation unconstitutional (with a partial exception for prisons) in a series of basically one-word per curiam opinions. The Supreme Court didn’t want to say what the truth was about the South—that its social and political system was a vicious attempt to keep black people in a condition of quasi slavery.
Once I said something in an opinion that is obvious and that everybody knows but is never said—namely that the intensity of judicial review of a district court’s decision will depend in part on the respect in which the district judge is held by the appellate judges. That made some of the district judges angry with me. I haven’t repeated it.