Some Realism about Judges: A Reply to Edwards and Livermore
Posner, Richard A., Duke Law Journal
For some years I have been arguing for a realistic approach to understanding judicial behavior. (1) That approach is challenged in a recent article by Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit and Mr. Michael Livermore, the executive director of the Institute for Policy Integrity at New York University School of Law. (2)
What I am calling the "realistic approach" is, most simply, the view that judges play a legislative role in many cases, and those usually the most important ones--the ones that shape the law or have an immediate effect on society. And they play that role not only in common law cases and other areas of explicitly judge-made law but also in the interpretation of statutes and--of course--of the U.S. Constitution. The opposing approach, which I call the "legalistic approach," pictures judges as oracles, engaged in applying law stated in orthodox legal sources, such as statutory or constitutional text or judicial decisions having the status of precedents, and doctrines built from those decisions, to the facts of new cases. Judges in this picture are transmitters of law, not creators, just as the oracle at Delphi was the passive transmitter of Apollo's prophecies. The analogy of judge to oracle was Blackstone's, who went so far as to argue that even common law judges were oracles, engaged in translating immemorial custom into legal doctrines rather than in legislating doctrines. (3)
The realistic view goes back to Plato's dialogue Gorgias--before there even was a legal profession or professional judges; we find it in Bentham, famously in Holmes (and less bluntly in Cardozo), in legal realism, later in political science, and then in economics and in critical legal studies. Though Holmes is venerated by lawyers and judges, the legalistic view continues to dominate professional discourse about judging. The reason is that lawyers and judges--particularly judges--like to think that judicial decisionmaking is an "objective" activity, that decisions are produced by analysis. No one today thinks the process wholly oracular. But the idea of the judge as an analyst shares with the idea of the judge as an oracle the assumption that legal questions always have right answers: answers that can be produced by transmission from an authoritative source, though in the modern view the transmission is not direct but is mediated by analysis. And the judge remains an oracle in the sense that his personality does not count. The personality of the oracle at Delphi was no more important than the personality of a coaxial cable. To the legalist, a judge is a calculating machine. To the realist, he or she is a typical human being, whose judicial votes, because they are not generated by a process that resembles the operation of the scientific method or the rules of logic, are influenced by life experiences, professional training and experiences, political ideology, temperament, personal-identity characteristics such as race and sex, energy, ambition, sentiment, taste for leisure or for hard work, cognitive quirks, training and intelligence, and the other influences on human behavior. Out of these elements some judges (and more law professors) have built elaborate theories--law as the quest for original meanings, law as active liberty, law as libertarianism, law as integrity, and so forth--but these the realist regards more as rationalizations of dispositions than as theories that actually guide decisions and can be verified or refuted, rather than simply accepted or rejected.
The realistic approach to judicial behavior is challenged in the article by Judge Edwards and Mr. Livermore, to which I now turn. I will not try to go through the article page by page, registering my disagreement with the points made by the authors; with many of their points I have no disagreement. I will confine this reply to the seven points with which I disagree.
1. Legalistically Indeterminate Cases Shape the Law. …