BOOK REVIEW: Judging Judges — Yet Another Posner Book Coming Soon
In contemporary law, his name ranks among the greats. He is Judge Richard A. Posner. Among many others, Posner’s works have in more recent times caught the attention of Justice Stephen Breyer, who not infrequently draws on or refers to the Seventh Circuit jurist’s writings. See e.g., Dorsey v. United States (2012), Mayo Collaborative Servs. v. Prometheus Labs., Inc. (2012), Golan v. Holder (2012, dissenting), McDonald v. City of Chicago (2010, dissenting), Bilski v. Kappos (2010, concurring), Merck & Co. v. Reynolds (2010), and Chambers v. United States (2009).
Whatever the extent of his popularity at the Supreme Court, Judge Posner is one of the few federal jurists to be openly critical of the Court, and in a judicial opinion no less. Consider, for example, a 1996 antitrust opinion in which then Chief Judge Posner took a few analytical and rhetorical swipes at the Court’s ruling in Albrecht v. Herald Co. (1968). Therein, Posner argued that the Albrecht opinion was rife with “infirmities” and suffered from “its increasingly wobbly, moth-eaten foundations.” The Supreme Court agreed and quoted Posner approvingly, and then reversed its holding in Albrecht! See State Oil Co. v. Kahn (1997). Admittedly, such judicial behavior – both at the circuit and Supreme Court levels – is an anomaly. Still, there is precedent, and its bears the Posner name.
Beyond Judge Posner’s many erudite (and sometimes controversial) judicial opinions, the Chicago-based jurist has published scores of scholarly articles and some 40 books on a variety of subjects. Coming this January, Judge Posner returns to one of his favorite topics: judging judges, including the work of Supreme Court Justices. Before saying anything more about his next book on this subject, permit me to flag a new article he has published entitled “The Rise and Fall of Judicial Restraint,” 100 Cal. L. Rev. 519 (2012). Here is an abstract of that article:
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.
Among Thayer’s most noted followers, Posner includes Justices Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter along with Supreme Court scholar Alexander Bickel. (Re Bickel, see here for a recent online Symposium on the 50th anniversary of the publication of his The Least Dangerous Branch.)
Against that backdrop, we come to Judge Posner’s next book: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, January 2013, $49.95). Judge Posner is a co-author, the two others being Lee Epstein (professor of law and political science, University of Southern California) and William M. Landes (professor emeritus of law and economics, University of Chicago Law School).
Together these three cerebral powerhouses offer some fresh insights into that all-too-secretive process known as judicial decision-making. Historically, this subject has been primarily the domain of political scientists who have focused much of their attention on the workings and behavior of Supreme Court justices. Such works include:
- Elements of Judicial Strategy (1964) by Walter Murphy
- Judicial Roulette (1988) by David M. O’Brien,
- The Choices Justices Make (1997) by Jack Knight and Lee Epstein,
- Judges & Their Audiences: A Perspective on Judicial Behavior (2008) by Lawrence Baum, and
- The American Supreme Court (5th ed., 2010) by Robert McCloskey.
- The Roosevelt Court: A study in Judicial Politics and Values, 1937-1947 (1969) by C. Herman Pritchett
There are, to be sure, many other such works, but soon we will have a new take on this old subject. Enter Epstein (a political scientist), Landes (an economist) and Posner (a federal judge).
“Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.” Thus begins the promotional description of The Behavior of Federal Judges. It is, we are told, a work that derives its hypotheses from a “labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work.”
The Epstein-Landes-Posner model of judicial behavior is not much enamored by “either the traditional ‘legalist’ theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior.”
And what, dare we ask, of ideology? Does it affect the judicial behavior of the members of the High Court? Well, the authors concede that it “does figure into decision-making.” And the influence of ideology is most acute, they argue, at the Supreme Court level.
The proverbial good news, we are assured, is that ideology “does not extinguish the influence of other components in judicial decision-making.” The Justices and their circuit and district court colleagues “are not just robots or politicians in robes.” But are they umpires? The answer to that question will have to await the publication of The Behavior of Federal Judges.
No doubt, the work-product of Epstein, Landes and Posner will be of great interest to all students of the Supreme Court and judicial behavior generally. One other book that might usefully be read alongside The Behavior of Federal Judges is one Judge Posner published some two decades ago: Cardozo: A Study in Reputation (1993). The chapters on judicial “reputation” (how to win it and maintain it) are particularly instructive and should be considered in connection with any work on judicial behavior, especially as that behavior plays out in the Marble Palace.
Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. His next book, Floyd Abrams and the First Amendment, comes out this January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Generation (with David Skover).