When it comes to trying to understand people, Richard Posner is an American Sigmund Freud. Where Freud’s key to humanity was psychology, 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 mess 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 or termination are practically freak occurrences. So internal constraints—much harder to identify—come into play.
Qualitative data and interviews might help explore that psychology, but Posner clings to logic instead. For example, he reasons that federal judges are likely more inclined toward “tormenting the lawyers… 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, couldn’t he at least score an interview with another judge?
With such impaired analytical bearings, How Judges Think is a woozy book. Arguments flicker in and out like motifs. The main ideas—that judges want to be thought of as good judges, and that they should decide cases pragmatically—hardly seem revelatory.
According to Posner, most judges are faithful followers of judicial convention. 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, rather than engage in “judicial activism,” interprets statutes according to established rules.
Posner’s 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. But in the near future, judges may increasingly treat their gigs as resume builders. George W. Bush’s appointments were exceptionally pro-business and 2005 was too early for them to have built favor with industry. Furthermore, the average age of appointment for judges is falling, so many of them will actually have time for a second career once they leave the bench.
This is an issue because, although judges must recuse themselves from cases where their interests are directly at stake, rulings on specific disputes also apply to those who might have the same problem in the future. Decisions that make it harder for injured consumers to sue manufacturers, for example, benefit company officers and shareholders—likelier futures for a federal judge than, say, working on the assembly line.
Posner’s 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. He argues that judges sometimes find themselves in an “open area” where rules of interpretation can’t help them. His antidote is pragmatism—considering a decision’s consequences—as well as the suggestion that judges learn when to say “let’s keep out of this briar patch.”
But Posner also uses his concept of pragmatism to open a large space for judges’ 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 necessarily good at foreseeing systemic consequences, however, as they tend to come from the more risk-averse wing of the legal profession.
Pragmatism aside, Posner blithely argues that judges are likely to pursue their own agendas whether they admit it or not. But he also believes the average judge’s agenda is to be a good judge. It’s a nice thought—but what if he’s wrong? Shouldn’t judges therefore be strongly discouraged—by journalists, politicians, and law professors—from ruling based on their personal worldviews?
