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Unfettered Judge Posner

1.

In ancient times, in the Middle Ages, and in the early Renaissance, people wrote books known as “mirrors of princes.” They would describe the life and character that a princely ruler ought to have, providing a catalog of princely virtues, and setting out tips and recipes for a princely education and the organization of a prince’s household. All of this an actual ruler could consider as an ideal, comparing it point by point with the way he ran his kingdom or principality. The best-known example of a mirror of princes is Machiavelli’s Il Principe, published in 1532, though it is arguable that Machiavelli actually intended to subvert the genre, upending as he did the list of traditional princely virtues, replacing benevolence with cruelty and fidelity with deception, and maintaining that “how one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done, sooner effects his ruin than his preservation.”

Richard Posner’s new book is a “mirror of judges”—a discussion of judicial virtues and principles for judicial education and the organization of a judge’s chambers. Of course, mirrors of princes were seldom written by princes themselves; they were written as advice to princes by clerics or scholars or political philosophers. Posner’s mirror of judges is written by an eminent judge of the Seventh Circuit—it’s as though Il Principe had been written by Lorenzo the Magnificent. Either way, Reflections on Judging is quite Machiavellian. For Posner too wants to upend our sense of the traditional judicial virtues; he wants to replace a naive ethics of adjudication with a set of prescriptions that are less formalistic, more pragmatic than conventional wisdom, and certainly more robustly realist in their character.

2.

Some of what Posner writes is presented as advice to a new judge, and much of it is unexceptionable. Judges should avoid unnecessary dissents and feuds with their brethren on the bench. They should try to get out of their chambers more and not pride themselves on an affected ignorance of the world around them. Appellate judges should occasionally volunteer to conduct trials, including jury trials, in lower courts because nowadays not all of them begin their appellate careers with district court experience. Judges should write their opinions themselves and address them to intelligent members of the public, not have them ghost-written by their clerks (who are fresh out of law school). Judge Posner has his clerks do research as all judges do; but unlike most judges and justices he insists on writing first drafts of his opinions himself and writes them in plain style rather than in the finicky citation-laden manner of a law review article.

Posner is particularly hostile to something called The Bluebook—a manual for legal citation that currently runs to more than five hundred pedantic pages, breeding “a culture of formalism, nitpicking, and manual gazing” and lending a spurious air of complexity and technical competence to cover up the judiciary’s failure to deal with real technicality, real complexity. What he calls the “internal complexity” of finicky legal technique is a poor substitute for judges coming to terms with the “external complexity” of real-world issues.

Most judges think they do not need technical knowledge about the subject matter of the disputes that come before them, like information technology or DNA or economics or prison administration or commercial competition. Judges duck and weave to avoid this external complexity. Appellate judges say they have to defer to the decisions of the courts below them on matters of fact; and in trial courts, judges often hand off the technical issues to juries, “whose ability to understand technical issues is on average even feebler than that of the judges.”

Members of the judiciary mostly think their own task is semantic or intuitive—semantic so that they can parse and interpret the rules they are called on to administer, and intuitive inasmuch as they rely on hunches rather than empirical data about what works in the real world. Any knowledge they accumulate is just knowledge of past decisions in which the same meager skill set was deployed: “An exclusive diet of Supreme Court opinions,” says Posner, “is a recipe for intellectual malnutrition.”

One clear conclusion from all this is that we need better judicial education. In our system, judges are appointed (mostly on political grounds) directly from the bar. “You are a lawyer one day and a federal judge the next.” This has its advantages, Posner believes, in fostering a less bureaucratic ethos than one sees in systems, such as France’s, where the judiciary is professionalized. But we still need to figure out ways of fostering more empirical work on the issues that judges confront and ways of making sure that it is brought to their attention and that they take it properly into account.

The work that is needed is work that will question preconceptions and shake up intuitions. There is no more vivid illustration of this than Posner’s own recent confession that a decision of his in 2007 about the legitimacy of voter ID requirements was flawed for lack of good information. Posner had written an opinion for the 7th Circuit upholding an Indiana statute that required people to produce government-issued IDs before they were permitted to vote in person on election day; and the Supreme Court in turn affirmed the 7th Circuit decision. Intuitively, a voter ID requirement seems like a reasonable way of securing the integrity of the democratic process. But as Posner now says, one also needs information about the number of citizens who lack government-issued IDs and the number who will be deterred from voting as a result of this requirement. Without those numbers—which can’t be arrived at intuitively—it is impossible to strike a proper balance between the prevention of electoral fraud and the need to protect citizens’ voting rights. And Posner pleads guilty to having made a decision he would not have made if he’d had this necessary empirical information.1

3.

So far, these recommendations for a new set of judicial virtues sound like the voice of common sense. Sometimes it’s disconcerting common sense; always it is interesting and engaging; and if it seems radical, that’s only because of the entrenched character of some of the stupidities Posner is trying to overthrow. But there are deeper and more troubling reflections in this book—reflections that make Posner’s mirror of judges seem much more Machiavellian.

I think that if you ask ordinary Americans what they want from their judges, most of them will say they want decisions according to law and they want respect for the Constitution. They want a judiciary that will issue objective judgments based on what the legal materials require, not decisions based on the individual judge’s own best estimate of how to solve social problems. They know that federal judges, like everyone else, have their own opinions about the best way to rule and organize our society. But the judges’ views are controversial: other citizens, who also aspire to make ours a better society, hold opinions that differ from those of judges. In the midst of such political differences, the ordinary expectation is that the judge will put his own views to one side and, when cases come before him, apply the rules embodied in statutes, precedents, and constitutional provisions.

No doubt these rules are also controversial, but the controversy has been settled for the time being by the process of enactment. The judge’s job is to keep faith with enacted statutes and the Constitution and also with whatever precedents have been decided, whether he likes them or not, even when his private view is that the measures he is called on to administer are silly or wrong. To do this requires considerable restraint, particularly when the conflict is not just between enacted laws and one’s own preferences but between enacted laws and one’s own thoughtful convictions or beliefs.

All this, I believe, is what most ordinary people think about adjudication. Some of us call it the rule of law. Translated into the language of virtue, it sounds as though what we want in our judges is objectivity, fidelity to law, deference to enacted rules, and—even if judges are political appointees—a willingness to restrain themselves as far as their own political convictions are concerned.

I am afraid that, in Reflections on Judging, Richard Posner ends up rather contemptuous of this approach to judging or at least of any judicial philosophy that is organized around it. He calls it naive, lazy, evasive, and obscurantist; it’s a cover for conservatism, he says, and it makes the rational solution of legal problems much more difficult.

The contempt is not always apparent. When he was confirmed as a judge in 1981, Posner says he was asked the usual question: “You would be willing to subjugate your personal views to the statute or the law?” He implies that his response to this “easily answered question” was “yes.” Indeed he still contrives to say that in this book, but only by insisting that, as a matter of definition, everything that judges ought to take into account counts as law—a facile move that makes the rule of law into a sort of tautology. On the ordinary view, judges are supposed to take into account all, and only, the things that the legal rules tell them to take into account. So a judge in traffic court should ask: How fast was the defendant driving? What was the speed limit in this area?

But Posner is drawn to the view that judges should also take into account the consequences of suppressing speed below a certain level. What will the effect be on traffic? How competent or dangerous is the ordinary driver at 75 mph? The ordinary view says that it’s the job of the political branches to make those calculations. But the position that Posner toys with is that consequential matters like these need to be taken into account in the courtroom in deciding whether to enforce the traffic statute or not. And he says that fact alone makes them part of the law.

Now, the speed limit example is perhaps too easy. There the rule is clear and it is not unreasonable to suppose that speed limits have already been properly thought through. Posner believes that the defects of the ordinary citizen’s expectation become apparent only in cases where there is a lack of clarity in the terms of the statute, or when there is a patent mismatch between the rule embodied in an old enactment and the circumstances of modern life. Our Constitution and some of our statutes and precedents are more than two centuries old and we struggle to apply them to situations that could not possibly have been within the contemplation of their drafters.

Even with more recent enactments, Posner thinks our legislative processes are so inept and ill-disciplined that the resultant measures are often “insolubly ambiguous.” In these cases, he says, when the enactment is unclear, judges should seize the opportunity to apply their own beliefs about what makes things work well in society. Perhaps if some plausible purpose is discernible from an enactment that lacks clarity, then the judge should do what he can to further that purpose. But when the purpose is not discernible, says Posner, “then the judge is the legislator” and we need an understanding of his role that permits and encourages him to take into account everything that a wise lawmaker would consider. He calls this “realistic” adjudication—an echo of American legal realism from the 1920s and 1930s.

  1. 1

    Crawford v. Marion County Election Board 472 F.3d 949 C.A.7 (Ind.), 2007; affirmed 553 U.S. 181 (2008). 

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