Published on The Rumpus.
When it comes to trying to understand people, Richard Posner is an American Sigmund Freud. Where Freud’s key to the human race was psychoanalysis, Posner’s is economics. In his 1992 book Sex and Reason, for example, Posner—a federal appeals judge and lecturer at the University of Chicago Law School—explained all of human sexuality in terms of six social variables (such as a given community’s sex ratio). Freud studied the messes in people’s heads but Posner works with the messes outside, also known as “incentive structures” and “external constraints.”
The problem with Posner’s latest book, How Judges Think, is that there aren’t a lot of external constraints on its subject, federal judges. Salary is automatic; promotion and termination are practically freak occurrences. So internal constraints come into play. Qualitative data (such as interviews) can zoom in on those but Posner clings to logic instead. For example, he reasons that “tormenting the lawyers” is likely to characterize federal judges “because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.” We yearn to know what it’s like to decide to torment a lawyer—or to know anything at all that would elevate the theory beyond speculation—but Posner leaves us hanging. If he’s too bashful to talk about himself, can’t he at least score an interview with some other judge?
With such impaired analytical bearings, Judges is a woozy book. Arguments flicker in and out like motifs. The main ideas are that judges mostly want to be thought of as good judges and that judges should decide cases pragmatically.
According to Posner, judges primarily try to be thought of as good judges, which means following judicial conventions. Not only don’t they use their position to get rich, but they don’t use it to favor sympathetic causes. “Just as doctors tend to be callous about sick people, judges tend to be callous about pathetic litigants because they have seen so many of them.” Instead the average judge relies on precedent and interprets statutes according to established rules. “The business of judges is enforcing the law. If you do not like enforcing the law […] you are likely to quit.”
This view understates two incentives. First, judges may transition to high-paying jobs; second, any judge with investments can benefit indirectly from her own generally pro-business decisions.
Posner cites a report that few federal judges quit for better paying jobs, but it only covers the years 2000 to 2005. Three data points suggest that judges will increasingly treat their gigs as resume builders in the near future. First, George W. Bush’s appointments were exceptionally pro-business and 2005 was too early for them to have built favor with industry. Second, that period might have been a lull, since Posner notes that another period (from 1969 to 1974) saw more defections. Finally, judges today are appointed at ever-younger ages plus geriatric care has improved for the well-off, meaning they actually have time for a post-judge career.
Judges must recuse themselves from cases where their interests are directly at stake. But in our precedent-based legal system, rulings on specific disputes apply to everyone who might have the same problem in the future. Decisions that make it harder for injured consumers to sue manufacturers profit (uninjured) rich people generally; so do decisions that preempt states from regulating industries more strictly than the federal government.
The other major claim is that judges should decide cases according to pragmatic values instead of “legalism”—formulaic, backward-looking theories such as originalism and textualism.
Posner argues that all judges sometimes find themselves in an “open area” where rules of interpretation can’t help them. He also casts a pall on legalism by linking it to young clerks who have “an understandable desire to believe that their steep law school tuition is buying them a set of powerful analytical tools” and to France.
Posner’s antidote is pragmatism—considering a decision’s consequences. His less controversial advice is for judges to learn when to say “let’s keep out of this briar patch.” Pragmatism is defined as allowing more flexibility to congress and local authorities.
Almost in contradiction to that model, Posner also uses pragmatism to open a large space for judges’ personal worldviews. He argues that pragmatic judges “consider systemic, including institutional consequences as well as consequences of the decision in the case at hand.”
Judges aren’t good at foreseeing systemic consequences because they probably have paranoid worldviews. They’re the risk-averse wing of the risk-averse legal profession. Logically, to take a play from Posner, that means they are ruled by the fear of death. Judges rule in favor of poor people and weirdos only as often as is necessary to keep their faith in legal justice alive so that poor people/weirdos don’t opt for street justice instead, an arena in which judges tend to be underequipped.
Posner blithely argues that judges will pursue their own agenda regardless of whether they’re candid about it. But he also believes the average judge’s agenda is to be a good judge. If somehow he is wrong about that then judges should be discouraged as much as possible—by journalists, politicians, and law professors—from ruling based on their personal worldviews.
If you’re actually curious how judges think, read Judge Posner’s Sex and Reason instead.
