How Judges Think

How Judges Think

How Judges Think

How Judges Think

Synopsis

A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning.

Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.

Excerpt

In my youthful, scornful way, 1 recognized four kinds of judgments;
first the cogitative, of and by reflection and logomancy; second,
aleatory, of and by the dice; third, intuitive, of and by feeling or
"hunching"; and fourth, asinine, of and by an ass; and in that same
youthful, scornful way I regarded the last three as only variants of each
other, the results of processes all alien to good judges.

Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a "government of laws not men," the "rule of law" as celebrated in the loftiest Law Day rhetoric, and so forth) does not exist everything is permitted to judges—so watch out! Legalism does exist and so not everything is permitted. But its kingdom has shrunk and grayed to the point where today it is largely limited to routine cases and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book These concerns have been made especially timely by the startling (to the naive) right turn by the Supreme Court in its latest term (ending in June 2007). the turn resulted from the replacement of a moderately conservative Justice (O'Connor) by an extremely conservative one (Alito) and so underscores the question of the personal and political elements, in judging and thus of the sense in which the nation is ruled by judges rather than by law If changing judges changes law it is not even clear what law is.

1. Joseph C. Hutcheson, Jr., "The Judgment Intuitive: the Function of the 'Hunch' injudi
cial Decision," 14 Cornell Law Quarterly 274, 275–276 (1929).

2. Linda Greenhouse, "In Steps Big and Small, Supreme Court Moved Right: a 5–4 Dy
namic, with Kennedy as Linchpin," New York Times, July 1, 2007, § 1, p. 1.

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