What Do and What Should Judges Do?
Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication." (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.) The podcast of that event is now on-line here. Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights."
The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication." I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241). Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.
First: Do judges actually have any obligation or duty to abide by precedents or statutes or constitutions on the pragmatic view? Or do they only have some instrumental reasons to pay some attention to these materials? The pragmatist judge, according to Posner, is “unchecked by any felt duty to secure consistency in principle” with past official actions, i.e., court decisions and legislative enactments (241). The pragmatist judge, he says, only decides “in accordance with precedent” when that is “the best method for producing the best results for the future.” (241). Judge Posner adds that the pragmatist judge is not “uninterested” in statutes and precedents, but that is because he “regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them” (242). Indeed, he refers to these sources of law as "'authorities'" (in quotation marks) and as “merely...sources of information and as limited constraints on [the judge’s] freedom of decision.” None of this makes it sound as though there is any serious obligation for the pragmatist to abide by precedent or statute.
Second: What happens when judges disagree about the “best” outcome? Here there are two kinds of possible disagrement. First, judges might disagree about the criteria that make an outcome “best." Perhaps the best outcome is one that maximizes the satisfaction of preferences as revealed in the marketplace; or perhaps it is one that maximizes the preferences people would have under ideal conditions of full information and rationality; or perhaps it is the one that maximizes well-being as understood on some non-preferenced based account (like Nussabum's or Aristotle's or Hegel's or Marx's); or perhaps the best outcome has nothing to do with maximization at all, and isntead is a matter of showing appropriate respect for rights or justice as understood in non-utilitarian terms.
Second, judges may agree about the criteria but disagree about their application in particular cases.
Disagreements of both kinds seem inevitable. How then will people be able to plan their affairs with respect to their legal ramifications, not knowing which judge, with which conception of the “best outcome” or its application, they may end up before?
Third: In a democracy, don’t appointed judges, with life-time tenure have an obligation to respect legislation in particular rather than substituting their own judgment about the “best” outcome? How is pragmatic judging compatible with the “rule of law”? How does Judge Posner understand the “rule of law” on this pragmatist picture?
Fourth: If judges were generally “pragmatic adjudicators,” it would seem we need a very different kind of confirmation process than we presently have. What should it be?
Judge Posner's replies to these questions begin about 16 minutes in on the podcast. I found particularly interesting his response on the first and fourth points. On the first, Judge Posner acknowledged that there was an obligation for judges to apply the clear (and clearly controlling) legal materials that bear on a question, but he emphasized, as he has done before, that especially at the appellate level, the law is often unclear (or silent), and so the need for discretion (for the judge to "make law") is inescapable. And it is in those cases that the duty of the judge to reach the "best" outcome is especially important. This essentially aligns Judge Posner's view with that of H.L.A. Hart in Chapter VII of The Concept of Law and with the views of the American Legal Realists. (On Hart's positivism, and judicial discretion, see generally this essay and especially this section; on the Realists, see this essay of mine, especially pp. 6 ff.) The key discussion of this point occurs from roughly the 16-minute mark to the 22-minute mark on the podcast.
Equally interesting, I thought, was our discussion of the confirmation process which, Judge Posner agreed, might quite properly focus on a judge's moral and political views given the inescapable need for appellate judges to make new law in many cases. (This discussion starts around 34 minutes in, and runs about eight minutes.) If judges must sometimes reach the "best" outcome without much guidance from the legal materials, then surely Senators confirming such judges should be able to inquire into that judge's conception of the "best." Some may recall that at his confirmation hearing, Chief Justice Roberts compared the judge's role to that of an umpire--an analogy which attracted favorable attention from some law bloggers--but which Judge Posner, quite correctly, calls an "embarrassment," since it ignores the reality that Supreme Court Justices, in particular, actually make new rules, while umpires do not.
There is much more of interest, but those intrigued but pressed for time might listen to the two parts noted above. We are fortunate, indeed, to have a jurist of Judge Posner's distinction who is willing to speak so directly and honestly about the role of the judiciary and the actual nature of the judicial task.
ADDENDUM: A reader notes the irony that the Federalist Society states as one of its core commitments that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be," while one of Judge Posner's central themes in his remarks was that judges, and especially appellate judges, inevitably have to say what the law should be.