Judge Posner disputes that judges argue much about the "normal" usage of words; when they argue about words, there is always a "complex background understanding" at work of the motives of the drafter and the function of the interpreter. And he doesn't see any place for cognitive hazards to enter into the process of interpretation, either.
So let's take as an example a case that I've mentioned in a previous reply: Smith v. United States. That's the one where the defendant tried to trade his gun for a bag of cocaine, and the question was whether he had "used" the gun in relation to a drug trafficking offense. The case was decided 5-4 in favor of the government. The two sets of Justices seemed much concerned with the exact point that my co-authors and I have been studying: how to read the language of the statute. Not how to read it in view of complex background understandings, but how to read it as a piece of English. The majority opinion, like so many opinions, says that "When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning." They went through dictionary definitions and examples of how the word "use" is used. The analysis then sounded like this:
"It is one thing to say that the ordinary meaning of 'uses a firearm' includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of 'use' that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow from the phrase 'uses . . . a firearm' itself. As the dictionary definitions and experience make clear, one can use a firearm in a number of ways. That one example of 'use' is the first to come to mind when the phrase 'uses . . . a firearm' is uttered does not preclude us from recognizing that there are other "uses" that qualify as well. In this case, it is both reasonable and normal to say that petitioner 'used' his MAC-10 in his drug trafficking offense by trading it for cocaine; the dissent does not contend otherwise."
And then the dissent argued back about what an ordinary person would think it means to "use a firearm." These discussions didn't owe much that I can see to the complex background understandings Judge Posner talks about. (Other parts of the opinions might.) Our claim is that in arguments like this, there is a risk -- the "cognitive hazard" mentioned before -- that the person makings claims of the kind just shown will be giving effect to policy preferences without realizing it. The interpreter claims not to be making a policy judgment, and thinks no such judgment is being made, but it is.
I'm not sure which part of this seems objectionable to Judge Posner. Maybe he thinks Smith is atypical. I don't; lots of Supreme Court and appellate opinions—though not, as a rule, opinions from Judge Posner—contain passages like these. Maybe he thinks these passages are insignificant; it's just stuff that judges are required to say by custom, but that has nothing to do with their actual reasons for decision. There may be something to that, but we think the materials that judges use (and feel obliged to use) to build their arguments can have some effect on what they actually do decide, so we aren't ready to treat these sorts of debates as though they don't exist. Maybe he thinks—I'm reasonably sure he must think—that the passage quoted a moment ago, like many passages from Supreme Court opinions, is vacuous nonsense that shouldn't be trusted. Again, that may be. Indeed, I'd say our claims and evidence can provide some additional support for that view, so I'm surprised he doesn't welcome them.