How A Judge Thinks: Review Essay
How A Judge Thinks: Review Essay
How A Judge Thinks: Review Essay
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2. See, e.g., Neil A. Lewis, Stark Contrasts Between McCain and Obama
in Judicial Wars, N.Y. TIMES, May 28, 2008, at A17.
3. Cf., e.g., ROBERT J. SPITZER, SAVING THE CONSTITUTION FROM LAW-
YERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL
MEANING 33–59 (2008) (describing how student-run law reviews and pressure
on faculty to publish yield dubious scholarship); Harry T. Edwards, The Effects
of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639, 1640–41
(2003) (noting that some academics ignore the importance of collegiality).
4. RICHARD A. POSNER, HOW JUDGES THINK (2008). Although I refer
throughout this Essay to the author as Posner, I do so strictly for the sake of
brevity. I do not mean to convey any disrespect to Judge Posner by this short-
hand.
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5. See generally SEGAL & SPAETH, supra note 1 (describing the tenets of
the attitudinal model).
6. Id. at 86–96.
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13. See, e.g., CASS SUNSTEIN ET AL., ARE JUDGES POLITICAL?: AN EMPIRI-
CAL ANALYSIS OF THE FEDERAL JUDICIARY 17–45 (2006).
14. Id. at 22, 23 fig.2-1.
15. See POSNER, supra note 4, at 32–34, 51 (discussing the various rea-
sons that judges are reluctant to author dissenting opinions).
16. See generally Donald R. Songer et al., The Hierarchy of Justice: Test-
ing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38
AM. J. POL. SCI. 673 (1994) (discussing the relationship of inferior courts as
agents of their Supreme Court principal).
17. Cf. POSNER, supra note 4, at 39; Songer et al., supra note 16, at 675
(explaining that a faithful agent-judge would apply the law as interpreted by
the Supreme Court unaffected by other considerations).
18. See POSNER, supra note 4, at 125–26.
19. See id. at 126.
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20. See generally Frederick Schauer, The Limited Domain of the Law, 90
VA. L. REV. 1909 (2004) (analyzing the viability of the view that the law acts
as a “limiting principle”).
21. See POSNER, supra note 4, at 7–9, 41–56.
22. Id. at 47.
23. Id. at 49.
24. Id. at 42–44.
25. Id. at 43 (citing Roscoe Pound, The Theory of Judicial Decision (pt. 3),
36 HARV. L. REV. 940, 945–46 (1923)).
26. E.g., BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS
(1921); O.W. HOLMES, JR., THE COMMON LAW (1881).
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51. See generally WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATE-
RIALS ON LEGISLATION 66–76 (4th ed. 2007) (describing theories of the func-
tions performed by legislators).
52. See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE
(1998); Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1
(2002); Stefanie Lindquist & Frank Cross, Empirically Testing Dworkin’s
Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156
(2005); sources cited supra note 1.
53. POSNER, supra note 4, at 174 –203.
54. Id. at 125–57.
55. See GERHARDT, supra note 1, at 68 (discussing the dominant social-
science models of precedent and noting that external constraints are “factors
external to the law, such as the justices’ personal or policy preferences” while
internal constraints are factors “internal to the law, including the Constitution
or precedent”).
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69. LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLI-
TICS OF JUDICIAL APPOINTMENT 66–70, 102–06 (2005).
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tudes about the law are a reflection of the choices of the presi-
dents and senators who are responsible for their appointments.
While neither judges nor Justices vote perfectly in accordance
with the preferences of the officials who appointed them, they
are rarely appointed—at least for the past few decades—
without some ideas of their likely judicial philosophies and con-
stitutional commitments. The Constitution does not dictate a
particular interpretive approach, but instead authorizes na-
tional political leaders to make the critical choices of the range
of interpretive approaches that they will allow—or disallow—in
the federal system. Thus, the federal judicial-selection process
may be used not only to fortify certain constitutional attitudes
or commitments within the judiciary but also to filter out the
nominees whose records suggest their constitutional opinions
are outside the mainstream of contemporary constitutional
thought.72
Second, not all judges would agree with Posner that they
are merely pragmatists. The popularity of reasoning by analogy
(or the case method) remains persistent and widespread in ad-
judication, and advancing arguments grounded in the social
sciences, as Posner is wont to do, will not appeal to any judges
except for Posner and the few other jurists who agree with him
on both the utility of social science research in the law and the
absolute futility of reasoning by analogy. Moreover, there are
many different modes of constitutional argumentation, and
Justices may choose which ones they find most compelling or
persuasive. Interestingly, Posner does not measure the kinds of
arguments that are popular on the Court, but in fact the most
popular mode of argumentation on the Court is precedent.73 It
is practically impossible to find an opinion that does not cite or
rely on precedent, whereas other sources, such as original
meaning, are rarely mentioned.74
Third, Posner discounts one of the most important things
law schools could do to train students to better appreciate judg-
ing: actually asking them to draft judicial opinions. Law schools
are rife with classes that call upon students to criticize judges,
but few if any classes are devoted to instructing students in the
CONCLUSION
I have long revered Richard Posner as a scholar and judge.
I am confident that it would be a pleasure—and an intellectual
challenge—to argue a case before him. I am also confident, par-
ticularly after reading his book on judging, of the arguments
that I would make to him, because he has told his readers the
kinds of arguments that would persuade him. The problem is
that these arguments are not likely to have much influence on
most of Posner’s colleagues, and there is the rub: Posner has
told us how he thinks as a judge, but Posner’s matrix of judging
does not provide much help or guidance on how judges other
than Posner think. Posner’s account of judging seems, more
than anything else, to be a defense of his own conception of
judging and an attempt to distinguish him from the Justices
whom political scientists have shown are grounding their deci-
sions primarily in their political biases rather than the law.
But, to know how judges other than Posner actually decide cas-
es, we need to know about them. It is not enough to suggest
they really are something other than what they purport to be,
particularly when so much of what they do and are has not
been fully disclosed. Nothing in Posner’s book negates that the
first and perhaps still best place to look to know how judges
generally think is the books and the opinions that they have
written as judges.
78. See POSNER, supra note 4, at 146–56 (noting, inter alia, the work of
Stephen Choi and Mitu Gulati).
79. See Stephen J. Choi & Mitu Gulati, A Tournament of Judges?, 92 CAL.
L. REV. 299, 305–09 (2004).