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Judge Posner’s Not a Suicide Pact

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8 Responses

  1. KipEsquire says:

    Posner lost me as a fan a while back when he insisted that data mining by the government implicated no civil liberties because “a computer can’t invade your privacy.”

  2. not sure i follow says:

    You say:

    “Posner argues for judicial restraint because ‘when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.’ (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.”

    So, are you arguing that when in doubt over the actual or likely consequences of a measure we should leave it to Article III judges? Why? They strike me as having less practical knowledge, having fewer means to predict policy outcomes, having less accountability for their mistakes, and having less ability to promplty correct their mistakes.

  3. dvorak says:

    If Posner is right that the threat of terrorism is extremely grave, then when would civil liberties ever win out over national security protections?

    To modify the old test: You know a terrorist nuclear bomb will detonate in 24 hours. What civil liberties do you think should trump national security?

  4. Mike says:

    Not to sound flip but….

    Yawn. Posner is a results-orientated hack. Paul Gowder and I have discussed/demonstrated this ad nauseum.

    Why do people still take Posner seriously? Because he’s a supposed genuis? Actually, he’s not even close. He just writes a lot. And people assume that because he writes so much, he must know a lot. And only a genuis could know so much!

    Of course, when people with expertise in the subject matter Posner writes about examine his writings, they see a typically Posnerian shallowness.

  5. Kenny says:

    Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

    But it is self-evident that the judicial branch is the branch of government that is least subject to checks and balances, and in particular is least answerable to the public for malpractice in its behavior or folly in its policies. A President who, in the opinion of the People, gets the balance wrong, is subject to the consequences of their displeasure as expressed in the ballot box, as is his party. A Supreme Court Justice who flagrantly imposes his own personal political agenda upon the entire nation by judicial fiat, is subject to…absolutely no negative consequence at all other than having people whose opinion he despises, think badly of him.

    That’s just one reason to value judicial restraint and judicial deference, generally speaking, to the directly representative branches of government.

    I have no idea whether you have spent a lot of time on your blog arguing about the importance of “checks and balances” and complaining that the President is too free to behave as he chooses without being controlled by other branches of government. But nobody who supports Supreme-Court level judicial activism — that is, nobody who objects to the principle Posner lays out in the passage you quote — can really pretend, in the presence of intelligent people and the obvious absence of legislative and executive control over the abuse of the Supreme Court’s powers, to believe in the importance of checks and balances per se. Whenever a supporter of judicial activism starts talking about checks and balances, the rest of us know perfectly well that he means “checks and balances on the behavior of people to whose political agendas I personally object.” Therefore I hope, since you here seem to be objecting to the idea that judges should defer in general to the two branches that are directly accountable to the voting citizens, that you have not complained in the past about inadequate checks and balances on the President’s behavior.

  6. Kenny says:

    And a second, and even more important, reason:

    When the Republican or Democratic party (in either the legislative or executive branches) makes what a majority of Americans considers to be an egregious error, it takes one election cycle to reverse the policy. But let a 5-4 majority of the Supreme Court, over bitter dissent from the one-vote minority, announce, “Thus saith the Constitution,” and henceforth even if 65% of the American people — an overwhelmingly majority — are absolutely convinced that the five activists have misinterpreted the Constitution, it will be practically impossible for the mistake to be corrected, and utterly impossible for it to be corrected quickly. If it is corrected, it will be either by amendment to the Constitution — for which you will require, in effect, a supermajority of Americans or else a majority of Americans very evenly distributed throughout the country — or else by the dying off of the irresponsible five and their replacement with other judges more in tune with the People. And the latter process implies that, if the People wish the ruling changed, then they will have to set aside whatever other policy concerns they might have in order to keep electing Presidents with an eye to how they will replace any Supremes who might choose to retire during their term. This is exacerbated even further by the fact that an extremist Supreme has the timing of his own retirement entirely under his own control (barring his being smitten down by God) and therefore can deliberately postpone or hasten his retirement in order to maximize the likelihood that the President in charge of selecting his replacement will be a President who shares the retiring Supreme’s agenda — and who will therefore nominate a “suitable” replacement.

    On difficult or obscure questions, the genius of the American system is that many different solutions may be tried in different states and jurisdictions, or at different times as different parties gain and lose control of the elective branches, and in this process of experimentation the American people are able to work out a practical and creative solution. But this whole give-and-take process — the very essense of American democracy — is short-circuited the moment the Supreme Court decides to jump in and decree that The Constitution Has Spoken — whether it actually has or not.

    Furthermore, decades of activism by Democrat-dominated Supreme Courts have now made it clear to everybody in politics that the single most important branch of government, the one that must be controlled by one’s own party because it absolutely is not controlled by the American people, is SCOTUS. Have you not noticed that suddenly the nominees for Supreme Court are no longer men and women who are near the end of long and distinguished careers, but are instead relatively young bright lights who, if confirmed, can then be counted on (at least so the nominating President always hopes) to defend his agenda literally for decades to come? John Roberts will, barring major health problems, be Chief Justice of SCOTUS for probably the next twenty or thirty years, during all of which time neither of the other branches of government will have the slightest ability to reign in whatever flights of dubious sophistry he might choose to engage in. And that is precisely why Bush wanted him: Bush fully intends that five Presidential terms from now “his” Justices will still be carrying on the Bush “legacy.” Thus judicial activism not only greatly increases the chances that the Constitution will be misrepresented in ways the voting public would never willingly countenance, and not only allows practically irreversible national policy decisions to be made by persons entirely unimpeded by checks and balances and accountability to a voting public, but it even taints and ultimately perverts the very process of nomination and confirmation that determines the long-term character of SCOTUS itself.

    Supreme Court justices are so manifestly free from accountability, and their mistakes (as defined by the will and judgment of the People) are so manifestly difficult to reverse (especially in comparison to mistakes made by the other two branches) that it is very difficult to imagine a rational person arguing against the principle of extreme judicial restraint unless two things are true about the supporter of judicial activism:

    1. He himself supports a political agenda that is not popular among the people as a whole and therefore that is unlikely ever to be put into practice by either of the two branches that have to answer directly to voters. A person who supports the extreme pro-abortion position of Roe, and a person who supports an equally extreme anti-abortion position, would each be tempted to find judges willing to say that the Constitution demands the imposition of his extreme agenda, because the American people if left to its own desires would almost certainly settle on a compromise position similar to those which prevail in Europe, which position would be unsatisfactory to those who (such as Justice Blackmun) support extreme positions on either side.

    2. He is confident that the judicial branch, on the whole, is dominated by people who share his agenda and will rule the “right” way — that is, in favor of the policies that he supports but that the majority of Americans do not. Thus Democrats who were perfectly happy to see sweeping innovations by the Courts of, for example, Brown v. Board of Education vintage, have suddenly had a religious conversion to the divine inviolability of stare decisis at the mere thought that the Supreme Court might someday have a majority of Republican judges who were willing to impose Republican political agendas. This dramatic change in attitude, which amounts to a demand that Republicans not be activists should they gain control of SCOTUS from people who have spent decades celebrating judicial activism, is entirely due to a dramatic drop in Democrats’ confidence that they will always control the Supreme Court and will therefore always be able to perpetrate, rather than be targeted by, SCOTUS activism.

  7. Karole says:

    I agree with Kenny. The argument for judicial restraint is strongest I would have thought in the field of national security. I am not an American, but the peculiarly powerful status of your Supreme Court, as pointed to by Kenny, just makes the point clearer.

  8. Karole says:

    By the way, this is a great blog. I came across it looking for reviews of Judge Posner’s new book, but I’ll be sure to add a link to it on my own blog and return regularly.

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