Wednesday, November 28, 2012

Posner on Judging

His Reflections on Scalia and Breyer

By Yaronit Nordin
Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's essay was prepared for the Judicial Process Seminar, fall 2012.

Judge Richard Posner’s jurisprudence or judicial philosophy can be said to emphasize honesty and practicality, and to discredit the idea that there can exist a perfect or unified analytical system applicable to any constitutional question that comes a judge’s way.

In “The Incoherence of Antonin Scalia,” Posner points to the failings and falsehood of “originalism” as Justice Scalia explains it in his most recent book.[1] In “Justice Breyer Throws Down the Gauntlet,”[2] Posner criticizes Breyer’s attempt, in his recent book, to fashion a loose-constructionist answer to “originalism” that Breyer calls “active liberty.”[3] 

Posner’s main problem with both Scalia’s and Breyer’s judicial philosophies is that both try to impose on the Constitution a framework that is too rigid for the real world, and one that is not or cannot be consistent with the document itself.[4]

Posner’s jurisprudence emerges from his analysis and is free of what he calls in his article on Breyer, a judge’s “self-censorship,” which leads judges to try to claim that their work is objective.[5] Posner embraces Ronald Dworkin’s “political morality”—a judicial philosophy that requires the judge to be a proponent of his legal determination, rather than to claim to be a passive oracle.[6]

From Posner’s critique of Scalia it is possible to glean that he believes it is not even heroic to select one precise method for analyzing constitutional or legal issues and declare that method absolute. In fact, he believes it is ridiculous.

Selecting as an example an ordinance that says that “no person may bring a vehicle into the park,” Posner shows that a textual “originalist” interpretation will not suit real life.[7]  If a judge were a true or pure “originalist,” he or she would have to conclude with a straight face that it would be illegal for an ambulance driver to drive into the park to assist a person having a heart attack.[8]

Scalia says that textual “originalism” is an “objective” approach because the text of the Constitution or of statutes is neutral.[9]  It may be true that text itself implies no political leanings, Posner acknowledges. But, he continues, choosing to ignore the purpose, consequences and morality of a law, unless it expressly addresses those issues, curtails the reach of the law, and that is a politically conservative preference.[10]

Scalia’s “objectivity” is, then, just a mask, a falsehood. Posner advocates that justices or judges should not wear such a mask of objectivity at all.

Wearing such a mask is a judicial problem on both sides of the political spectrum. Scalia says in his book that, until the middle of the twentieth century, textual “originalism” was the dominant method of American judicial interpretation.[11]  He supports this proposition with quotations from judges that, Posner highlights, were actually not known to be strict constructionist, but rather were known as loose constructionists.[12]

Posner explains the “originalist”-sounding quotes as the product of judges’ strategic lack of candor.[13] Maybe that is why Posner shows more affinity for the judicial philosophy apparent in Justice Breyer’s judicial opinions and practice. He calls Breyer a “bricoleur” in developing an approach that draws on many theories and philosophies.[14]

Posner doesn’t criticize Breyer when he describes the latter's true jurisprudence as “loose enough to accommodate any result that a judge might want to reach for reasons the judge might be unwilling to acknowledge publicly.”[15]  Rather, Posner is saying that Breyer’s complex “bricolage” of theories is like a Swiss army knife that he uses to make moral/policy arguments.

That is what a judge should do, according to Posner. But without pretense of objectivity.[16] Rigid judicial philosophies like “originalism” or Breyer’s manufactured “active liberty” impose more constraints on the work of a judge than is either desirable or required by the Constitution.

In his article on Breyer’s book, Posner dismantles Breyer’s attempted construction of a unified approach to constitutional analysis. Posner says that above all, it was unnecessary for Breyer to impose on the Constitution a “new” framework for understanding its directions. The Constitution already contains a concept of democracy—representative democracy.[17]

Posner wants Breyer to acknowledge that his jurisprudence is in reality focused on improving the representative democracy that is guaranteed by the Constitution.[18] From his approval of many of Breyer’s opinions founded on consideration of the consequences of the law, the law’s purpose, practical concerns, and moral concerns, the inference is that Posner’s own jurisprudence is similarly focused on improving the Constitution’s representative democracy.[19]

Posner spends much of the article explaining that each of Breyer’s tools of analysis such as consequentialism, pragmatism, purposiveness, etc. is useful for making clear arguments.[20] However, he says, all do not work all the time, and every one is not appropriate for every constitutional question.

Posner is especially critical of Breyer’s tendency to formulate vague standards while employing one or a few of those approaches.[21] The idea of “weighing imponderables,” for which Breyer is known, is one that is easy to poke fun at. But Posner says that this is what constitutional law is all about.[22]

Since the Constitution’s “laws” may be more accurately characterized as concepts rather than specific instructions, judges have more work to do. They must find a reason to vote one way or the other.[23]

Tort law, for instance, requires weighing the gravity of the risk and the value of the harm to determine if there was negligent wrongdoing or not.[24] The Learned Hand rule for whether the defendant breached his duty of care is the sort of economic analysis that Posner prefers but finds to be improperly vague in many of Breyer’s opinions.[25]

Posner agrees with Breyer that constitutional law concerns “gradations, with consequences that flow from a little more or a little less.”[26] Such economic analysis includes what Breyer calls “practical considerations” as well. Breyer saw this in Justice O’Connor’s opinion on affirmative action in Grutter v. Bollinger.[27]

An additional aspect of Posner’s jurisprudence can be gleaned from his approval of this opinion. Sometimes it is appropriate for judges to base their professional opinions on what they believe in their guts to be necessary and right.[28]

[1] Richard A. Posner, The Incoherence of Antonin ScaliaThe New Republic, (Aug. 24, 2012, 12:00 pm),
[2] Richard A. Posner, Justice Breyer Throws Down the Gauntlet, 115 Yale L.J. 1699 (2006).
[3] Id. at 1699.
[4] Id. at 1702; Posner, supra note 1.
[5] Posner, supra note 2, at 1699, 1716.
[6] Ronald Dworkin, Taking Rights Seriously (1977).
[7] Posner, supra note 1.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Posner, supra note 2, at 1715–16.
[15] Id. at 1716.
[16] Id.
[17] Id. at 1701–02.
[18] Id. at 1702.
[19] Id. at 1704–13.
[20] Id.
[21] Id. at 1705.
[22] Id. at 1706.
[23] Dworkin, supra note 6.
[24] Posner, supra note 2, at 1706.
[25] Id.
[26] Id. at 1715.
[27] Id. at 1709–10.
[28] Id. at 1710.