U.S. Appellate Judge And Prolific Author Richard Posner Explains The View From The Bench
By PAUL WACHTER
“I was thinking of calling the book Do Judges Think? or Which Judges Think?,” joked Seventh Circuit U.S. Court of Appeals Judge Richard Posner to a packed lecture hall on March 11, 2008 as he highlighted the arguments of his forthcoming book, more generously titled How Judges Think.
Posner, a lecturer at the University of Chicago Law School, said judges are not impartial arbitrators of the law but rather are influenced by a variety of factors. “Judge [John] Roberts, as his appointment to the Supreme Court was being confirmed, compared judges to baseball umpires, who essentially call balls and strikes based on the rules,” Posner said. “But that’s wrong. There’s a political element, too, which is shaped by the personality of each judge.”
Posner said that while many court decisions are determined by precedent, at the higher levels of the judiciary there are many cases where precedent is not a reliable guide.
It’s only natural that some judges are loathe to admit this, which is why some cloak their analysis in grand legal theories such as originalism or judicial cosmopolitanism, Posner said. “When you decide a case, you make one side sad,” he said. “So, you’d like to say, ‘Well, that’s the law’ and not ‘Well, I decided this way but I could’ve gone the other way.’
“But a great deal of our thinking is unconscious,” Posner said. “We start with a pre-conception, which changes with evidence, but nonetheless often affects the outcome.”
Posner advocated a judicial pragmatism that leans on precedent but also is more honest about the real-world implications of law. To this end, he said, legal education should focus more on the temperaments, personalities, politics and ideologies that underlie the making of legal opinions.