Richard Posner on The Supreme Court’s Politics

The Role of Politics in the Supreme Court, a Chat with Richard Posner

“Dick Posner,” the judge introduced himself before sitting down onto his green crouch. A plastic Lake Michigan loomed in his office window, smoky with fog.

The latest interviewee for my project is the Chief Judge of the Seventh Circuit Court of Appeals, recently heralded in popular legal news for authoring the incisive, humorous opinion consolidated in the two gay marriage cases coming from Indiana and Wisconsin, Baskin v. Bogan and Wolf v. Walker.

We discussed the broadly termed topic and legal community favorite of, “the role of politics in the Supreme Court,” among some other, interesting topics—his view on the value of the legal clerkship is pretty great.

The first gimme question is, “What is politics to Posner?” followed by elaborations of his view of the role of politics in the Supreme Court.

Preliminary insights into his notions (several of which were presented at a nominal level in the interview) are discussed in his 2008 book, How Judges Think, and an article published as the Harvard Law Review’s 2005 Foreword, A Political Court. That foreword is incorporated and expanded in the book’s tenth chapter and expands upon the framework he lays out in the first few chapters of the book.

Politics to Posner

In our interview, Posner opens up with a discussion of Bayesian priors, just as he does in How Judges Think (HTL). These are (in a super-rough way) probabilistic expressions of the cognitive inputs that go towards producing a probable decision output; in other words (again, very rough), they are the preconceptions underlying decisions; being preconceptions, they are unlikely to be consciously contemplated, and thus the resulting decisions are somewhat less rationalized than we might otherwise like to believe. A decision emerges, and we seek to explain it, and therein enters the rationalization to explain the conclusion, a type of deduction reasoning Posner believes endemic to all judges, and not in a bad way, either. HTL, pp. 60-64.

So, Posner thinks that new situations or novel issues are pre-filtered by some kind of experiential filter, which could be biographical or temperamental, like some kind of “softies” or “sweeties” who are disinclined to believe “bad people” exist, and thus may make softer adjudications on the whole due to that kind of prior operating in the background. In fact, he thinks priors can be so influential, judges will try to discount it from their reasoning - a religious prior might come to the fore in a decision, and since religious considerations can’t be considered as values for deciding the Constitution, a judge would have to intentionally suppress it. He expands on the unconscious aspect further in HTL.

He expressed in the interview that politics could be seen in a narrow, partisanship type way (party loyalty) or more generally as a disposition towards certain policy preference. The Supreme court, he infers, is political in the broader sense because it lacks much in the way of external restraints. It’s the highest Court, its justices are tenured for life, it rarely gets Congressional blowback, and it gets increasingly politically charged cases: gay marriage, abortion, death penalty.

Now, in his book, he gave more expansive claims. In HTL, politics is a  “spongy” word that could refer to 1) judges making partisan decisions, whether out of “loyalty to a political party” or as a “mirror [of] the platform of a political party, though as a matter of conviction” than of party loyalty, or 2) ideological decisions reflective of a (generally) “consistent political ideology, which might be ‘liberal’ or ‘conservative,’ and thus correlated . . . with the Democratic or Republican Party platform,” or some other non-majority platform, or 3) decisions made on a technical-policy judgment (best means to agreed-upon ends), or 4) political in the grotesque sense of the beguiling legislator (the content in the vernacular, “He’s a good politician”). Pp. 9-10 How Judges Think.

Political factors do not end the judicial inquiry; importantly, there are “personal” factors, which include personality traits, temperament, background (e.g. race, sex), and experiences. Indeed, “political or ideological factors” influencing adjudication might just be by-products of personal factors. Additionally, institutional factors (e.g. judicial salary and workload) and strategic considerations (e.g. dissent aversion in the Justices) contribute to adjudication. Id. at p. 10.

The political and personal factors combine to form “preconceptions, often unconscious, that a judge brings to a case,” which can explain how a judge could, in good faith, believe himself to be making an apolitical decision, a kind of psychological scapegoat by which the judge can hang his politicking sins when criticisms of political activism come to bear.

Posner contends that his interpretation of decision-making as political is apt because, he believes, all behaviors are rooted in human desires. Judicial desires are acute in what he terms the “open area”(a conceptual space in which legalist, orthodox methods of decision-making would yield bad conclusions, thus “opening” the space to a decision rooted in non-legalistic factors, such as political ones). Id. at p. 11. Posner dispenses with the idea that most judges are implementing on a consistent basis any of a number of “judicial philosophies” (much as he did in the late 90s with his book The Problematics of Moral and Legal Theory), or any consistent legalistic jurisprudence; ultimately, he thinks judges are “constrained pragmatists” who are political in the broadest sense of the term (“anything that has the slightest whiff of concern for policy”).” To the extent judges are purporting to follow a school of thought, or can be inferred to be doing so from their expressions in books, speeches and opinions, Posner suspects dissimulation.

In HTL at p. 257, Posner quotes Justice Kennedy, who has said that judges make instinctive judgments, after which they have to normalize the judgment into a statement, and then conform that statement to the law, logic, and ethics - to a large extent, this sounds a bit like running instinctive conclusions through a legitimation filter to reach a result that sticks, but it sounds mostly like an absolute confession of conclusion-driven thinking. In fact, in the same passage Kennedy says that the Framers gave judges the power to shape the destiny of the country.

This raises some concerns to those who believe judges “apply” the law, which Posner believes is an incredibly naive approach. This is even more troublesome if you think that in other decision-making contexts involving legal rights, this is the common practice—conclude first, rationalize after. This cognition is especially dangerous where the jury is concerned, because juries don’t need to rationalize out loud or be held accountable (in the main) for their conclusions drawn. This is made all the more likely when the only reason to change the mind is based on esoteric or difficult-to-wield claims like “insanity at a moment in time” versus “insanity for a long time” when considering defenses to murder.

Posner continues that, to the extent legalistic factors such as precedent and textual language are unavailable or unresolved, you’re left with something else, the political and personal factors, to reach a decision. Since the Supreme Court is the court of last resort, to which just such issues unavailing of legalistic simple solutions (“Does precedent exclude such? Does the language require such?”), it is of necessity going to be funneled into making decisions without a legalistic framework. Posner is suspicious of efforts to dress decisions in legalistic language, as though the decision were compelled, especially when it issues from originalists (more on this below). He believes reaching too far back in time for relevant text to rely on for a decision, or viewing ancient materials as binding or influential “precedent,” is just a game. (He gets a classic Posner v. Scalia jab in at this point in the interview, which I discuss later.)

If Judges Aren’t Making Legalistic Decisions, How Do They Use the Constitution?

Expanding on the preceding points, Posner expressed discomfort with the idea that the Justices engage in any “constitutional interpretation.” To him, the Constitution is “perfectly clear” but what makes it “vague” or “very general” and “difficult to deal with” is that it fails to match current problems; there is no real way to interpret around it to address modern policy issues. This goes back to his belief that one can pick any interpretive rule one wants when reading unenumerated rights into the Constitution; if the Constitution doesn’t discuss abortion rights, perhaps because at the time of the Constitution / the Founders did not foresee abortion technology and proliferation to the extent we have it, that in and of itself is no foreclosure to Posner.  To him, the text would clearly not provide that right, much less the rules of the game the Court has developed, which he, as an appellate judge, upholds and uses (think “strict scrutiny” vs. “rational basis” in the Seventh and Sixth Circuit’s respective approaches to the issue of same sex marriage). So why would the Justices properly develop the right to abortion? Because some kind of pragmatic pressure necessitates it - the technology is here, the social activity is here, the need for it is present, the “science” is behind it, the social attitudes encourage it, and one can see that there is social benefit to derive (of some kind) that outweighs it tradeoffs and costs.

When I asked him directly how he believes that he adjudicates, he said that he asks himself, “What is a sensible result? If so, is there anything blocking it, like a higher court decision, or a decision of his own court which people had relied on such that he did not want to upset expectations, or some precise governing language on the matter?” His stated solution-seeking sounds a lot like Kennedy’s own backwards working to a fitting conclusion.

This seems to presume that the Supreme Court has some kind of rationale as to why they should be free to adjudicate on those situations, which do not comfortably nestle within the governing text of the Constitution or constitutionally enacted statutes. Posner agrees that the Court has simply adopted the role of deciding constitutional cases without any guide in the Constitution, and again, there is no guide, because there would be no issue if the text had a clear result commanded in most of the cases that rise to the level of the Court to resolve, but there is rarely a modern issue that clearly fits the language. Posner offers the “equal protection” example and shows that Brown does not seem to fit the “historical meaning” of the clause at the time it was passed (much less the history surrounding the Amendment). The Fourteenth Amendment was ratified in 1868; Brown came in 1954, over a century after segregation was explicitly allowed under the Amendment’s language; so “equal protection of the laws” does not sound like it would apply to the issue of segregation; the Court’s approach, viewing segregation as harmful to black children and thus a violation of equal protection, changed the idea of equal protection from a guarantee of police protection to one of situational disadvantages. Posner’s historical understanding is shared by other commentators like Steve Calabresi and Abe Salander (p. 17 of the link digs into the distinction between “equal protection” and “equal laws” and why the inclusion of one term is important to understanding the meaning of the law).

The Court Is a Political Organ and Its Jurisprudence Is All Wrong

The basic gist of Posner’s argument is that, based on his feelings and his interpreted experiences as a federal judge, the Supreme Court’s structure, incentives and decisional constraints lend to its decisions a political dimension. It is viewable as a legislative organ primarily concerned with resolving socially divisive policy disputes under the guise of constitutional adjudication. Readers and viewers of In Medi(a) Veritas’s first entry with Lino Graglia will be aware that this is a position the UT Law Professor also espoused: the Court is making policy calls under the auspices of “constitutional interpretation” or application. This position is not controversial in legal academia; professors often attempt to explain the Court’s decisional influences and outcomes in a variety of formalistic or moralistic ways.  Consider Berger’s conservative criticism of Dworkin’s proposition in an article that came to be part of Dworkin’s book Freedom’s Law, that judges should utilize moral theory of some sort as a lens to lay over the text of the Constitution before crafting decisions, especially where such moral reading as enacted by judges better attains the “moral principle” of the Constitution the Framers meant to instantiate, or Chemerinsky’s explicit observation in his article The Jurisprudence of Justice Scalia: A Critical Appraisal, that it’s no secret that the Justices are “making value choices” when “interpreting the open-ended language of the Constitution,” and his more oblique route to the same conclusion when he discussed the low likelihood that elected judges would make unpopular decisions like declaring the death penalty illegal, so it belongs to the purview of federal, life-tenured judges to do so.

The criticisms are clear. Originalists and conservatives advocate for a commonsense approach to the Constitution by the Justices, but Posner disregards these approaches as too backwards-looking. In our interview, he verbalizes a powerful image of the judge who walks forwards with his head on backwards, scouring the past for guidance to modern issues; in the book, he says that “backward orientation actually enlarges a judge’s legislative scope, and not by concealing that he is legislating,” because by reaching back in time to older material as an “authentic Ur text,” the judge gets a wide scope for “manipulation of meaning in the name of historical reconstruction or intellectual archaeology.” HJT, pp. 103-04.

It’s clear that he thinks there is a “bright line” problem with how far back to look in time for support for originalist arguments, but this might be because he does not parse the subtleties separating originalist theories, owing perhaps to his general disdain for originalism as a way of adjudication (says he in his book, “You can adopt an interpretive rule that constitutional rights cannot be created by implication but must be stated expressly in the Constitution . . . [b]ut the choice of that interpretive rule is not something that can be derived by reasoning from agreed-upon premises. The originalist’s pretense that it can be makes originalism an example of bad faith in Sartre’s sense–bad faith as the denial of freedom to choose, and so the shirking of personal responsibility.” HJT, p. 104.) Josh Blackman has discussed Posner’s mishandling of originalist thinking here.

However, in our interview he referenced Scalia’s opinion in D.C. v. Heller as an example of this backwards-looking, saying Scalia looked back as far as the 14^th century or so for support for his “original public meaning” brand of originalism in that Second Amendment case. I found no support for this claim. Scalia’s opinion does cite historians’ discussions of Stuart period laws in England, like the Game Act of 1671,a law Catholic James II passed to disarm Protestant foes; see 554 U.S. 570, 589 (2008); so maybe that’s far enough to get pretty close to medieval; certainly, Stuart period law is quite removed from the modern American gun control issues, as Posner would emphasize. Scalia, on the other hand, has said in a discussion on US Constitutional law regarding the relevance of foreign court decisions that he relies on old English law where it gives context and insight into the meaning of terms of art, like “due process” and “bear arms.” This so-called “judicial cosmopolitanism” is the last topic in Posner’s book How Judges Think he aims to shoot down (he thinks that foreign communities, not being part of our democratic-republican considerations in America, should not be cited to as a dispositive or persuasive source of law).  It’s no secret Posner and Scalia have had some nasty public exchanges over the Heller case, with Posner almost certainly getting it wrong in a very public way.

Of course, is backwards looking unexpected when adjudicating on the Constitution?  I don’t think so. The document was written with certain words and not others, at one time and not another, in a certain context and not another. The question is, when the Court seems to force the same text to do X one day and Y another day, did X and Y result to do any backwards looking yielding different results, or due to forward looking? The easy example is Plessy, the decried case Dworkin believes the Court got wrong, and Brown, which overturned Plessy; Dworkin extols Brown while Raoul Berger deplores it as a bad example of constitutional legislation by the Court; there is no support in the Fourteenth Amendment for Brown’s holding if you look to the history of the Amendment’s enactment, in much the same way that there is no support for Breyer’s insane position that the death penalty is unconstitutional as a cruel and unusual punishment despite being provided for in the Fifth Amendment, which was enacted at the same time as the Eighth Amendment prohibiting cruel and unusual punishment.

It is to Posner, since what he think judges are doing is applying policy informed by current affairs and modern experiences. To be fair, our Constitution is over a couple centuries old, and it did not emerge ex nihilo; additionally, I’d predict that the modern materials Posner thinks judges should refer to, exclusive of the empirical studies, are derivative of, or commentative upon, some historical material.

Why Not Abdicate Decisionmaking?                                                   

So why make decisions like Brown, or decisions like the one in the same-sex marriage cases Posner decided? It’s because the “horse is out of the barn”, and for the Court and its adherents to abdicate ruling on cases not clearly arising the Constitution or the laws of the United States would cause system shock. We’re too far into the game to pull out now, in other words. Compare this position to Graglia’s belief that the Court should sit silent; I personally don’t feel that refusing to rule on cases that the Justices can’t be cornered into saying fits the Constitutional mold would cause that much system shock; lots of policy proponents whine about why certain cases aren’t taken up on cert while others are, and there are tens of thousands of cases that fly up to the Court to be swatted down. There would be outrage that the Court does not adjudicate whether “same sex marriage is constitutional,” perhaps, but perhaps only because of the expectations the public has been conditioned to hold about the Court’s constitutional power to look into issues which have nothing to do with the Constitution aside from the precedent laid down by the Court.

The Court Is Political, But Politically Uncultured

Ultimately, Posner feels, the Court treats the Constitution as though it authorizes courts to create constitutional law, as though there were some such clause contained therein. Most problematic of this is that the Court does not strike Posner as sufficiently politically savvy. He cites the Clinton v. Jones sex scandal case as an example, pointing out that the Immunity Clause is not really laid out in the Constitution and is derived from common law, so there was no constitutionally clear reason to deny him his two-year deferment. However, Clinton had asked for both deferment pending a ruling on total dismissal under grounds of immunity; his motion for dismissal provided tolling to Jones to permit her to refile once he was done with the presidency. The Eighth Circuit had claimed the deferment to be a “functional equivalent” of temporary immunity and no case existed to grant him immunity from suit for unofficial acts. The Court disagreed with this analysis and the choice to issue a stay, and in denying immunity, seemed to fumble around whether or not the separation of powers principles provided a clear answer to the case, and settled on the straightforward route that, since the “principles” underlying the Clause did not extend immunity to permit the President to focus on his job rather than private litigation, he could be sued.  Posner’s disagreement could probably be traced to how many ancient materials the Court had to satisfy itself with reading before issuing the answer, including letters from Jefferson. At the end of the day, Clinton was on the hook for the suit. The case seems as if it could “open the gates” to suing the Presidential seat with various state tort claims, which might be one good reason to find the decision less than politically sound, and in any matter, the decision certainly earned no friendship from the direction of the Presidency to that of the Court’s.

An interesting segue in the interview emerged when I asked him if he thought Chief Justice Roberts was acting more than politically savvy in re-casting the Obamacare penalty provision as a constitutionally valid tax, despite Congress’ and Obama’s insistence that it was not a tax increase (in order to pass a form of constitutional muster). The not-a-tax fight has blown up before the 2012 Obamacare decision in Nat’l Federation of Independent Business v. Sibelius. The Court noted Congress refused to characterize the penalty as a tax (p. 2 of the syllabus), but that such labeling did not control whether it was a tax or not.  The DOJ has argued that even if the ACA provides a tax, it’s permissible under the General Welfare Clause because Congress has more than just the enumerated powers of the Constitution under the language and scope of the Clause. The Roberts Court rejected these arguments, framing the penalty as a tax if was to be upheld at all, despite the fact that the Court acknowledged the “most straightforward reading of the individual mandate is that it commands individuals to purchase insurance,” in contravention of the Commerce Clause. It seems that a careful argument could be made that the law is invalid as an excess of the Powers, though the majority took care to ensure that as a tax, it passed its idea of constitutionality.

The Court Sometimes Seems to Contemplate Bad Arguments, Even Religious Ones, As a Way of Making Constitutional Law

Posner is suspicious of the importation of invalid (to him, it seems, non-pragmatic) arguments into decisionmaking. He is very critical of Alito’s dissent in the Windsor case invalidating the Defense of Marriage Act. He feels that Alito’s dissent arose out of a fear that invalidation would lead to pressure to permit more same-sex marriage. His feelings on that topic are not secret, as they are discussed extensively in his same sex marriage opinion (linked above). His concern with issues of same-sex marriage issues (and generally other discrimination-type cases) is the proper assessment as to whether there is harm to a class or the individual from the practice of same-sex marriage.

                                                                                               

(As to our Falwell or Robertson point on whether God caused 9/11 over homosexuals, turns out it was both of them agreeing on that point, and a bunch of other liberal evildoers like “the secularists.”)

Although it is improper to “import” into an opinion a religious value, these religious values will be held in the background (Bayesian priors) of the judge’s mind, which the careful judge would gut-check to the extent he does not believe it is right to adjudicate into law his sentiments or interpretations of religion. Additionally, I believe if the Court ignores the religious majority viewpoints on the topic, it can lend to a view that its decision was illegitimate; this on any number of topics. If the Court discusses popular feelings about same sex marriage, it seems remiss to focus only on Gallup surveys without also digging into a discussion about the origins of these feelings, their religious support, their secular support, and so forth.

Law Clerks Don’t Contribute to the Politics of the Court, but They Are Valuable to Big Business

This was a great bit. I asked if he thought the bureaucratization of the Court, with the expansion of the role of the law clerk, was valuable in a political way. He said no, and gave some history: when he clerked back in 1962 for Brennan, he did not even apply. It was a casual process, he said, and not particularly coveted. His Justice had a professor friend at Harvard he used for recruiting legal talent to come work for him.

Now, Posner says, the game is different. Clerks get $300,000 signing bonuses in addition to the regular salary. Why so? He says clerks are worth the big bucks because a firm can turn to its clients when it loses a big case and say, “Well, look at all the damage control we tried beforehand. We hired eighteen Supreme Court clerks to help us on this, and even with all their insider knowledge and expertise of judicial decision-making, we couldn’t win. Sorry.” Law clerks serve as insurance for legal departments and outside counsel. Is that cynical as all get out? He says, yeah, it is, but there you have it.

Conclusion

Posner discussed a lot of interesting topics, and has written on them in other places. He is not the most consistent applier of his own ideas, as has been pointed out by some critics, and he is not always the most careful reasoner, sometimes mis-weighing statistics and empirical information of limited scope as evidentiary enough for a major assumption in a case, like gay marriage. His court’s invalidation of Indiana’s and Wisconsin’s gay marriage laws recited psychological findings by the American Psychological Association and other studies, as if the matter of homosexual behaviors have been finally sealed from reasoned public disagreement. For a Queer interest group’s arguments to the contrary (derived from modern and postmodern conceptualizations of social construction theory), this article presents some arguments that, since there is a distinction between orientation and gender, and a dearth of data on the nature of desire and attraction, and the science is still out on the hardwiring of homosexual orientation, it’s an unsafe and unwise policy position to claim that homosexuality is inborn. Legally, this would make homosexuality something akin to skin color or sex, which would, to an extent, elevate homosexuality from the legally “unprotected” class of people not given to special regard in equal rights and due process jurisprudence (i.e. Blacks, Homosexuals, Women for purposes of Fourteenth and Fifth Amendment laws). To the extent homosexuality is as inborn as any hunger or drive, and thus as relevant to questions of governmental discrimination, laws discriminating against homosexual activities or political desires (such as marriage) should be expected to be given greater deference. See, e.g., the Sixth Circuit’s opinion upholding gay marriage bans, compelled in part through its “rational basis” standard of review.

To the extent a pragmatic judge is one who needs to look carefully to social context for clues on the “right” decision for a given time and place in his community, it seems that the data should be susceptible of as apolitical a reading as possible, even if the reading itself must be used for a political end. In the case of same-sex marriage, the question is less one of whether or not homosexuals “choose” or are otherwise “led” into having a consistent set of sexual-attractive feelings, then whether marriage of same-sex couples presents social benefits or falls in line with community standards of justice. Posner follows the “benefits should outweigh the costs” school of thinking, but as noted above, he discounts purported costs he suspects are susceptible only of religious advocacy. In fact, if a proponent of a policy position on the gay marriage issue fails to raise any arguments about the collateral damage legalized gay marriage might cause, Posner would pretty much exclude the rest, due to his suspicion of the bad economics underlying the anti-gay marriage platform. In the interview, and in other publications, Posner argues that what he would like hear are arguments oriented towards economics-type reasoning; he wants to hear about reasonable projections of the ramifications of certain laws, after the social-scientist way of thinking like Max Weber. But if we look to his marriage opinion for an example of this kind of acceptable reasoning, we find that what Posner seems to expect are arguments which selectively cite science to bolster a sociolegal policy, or, in other words, to explicitly engage in politicking from a scientistic perspective.. No data is free of politicization.

Posner is looking forward to a day when the Court can be more honest with itself and the public, when decisions can be more freely made without trying to wedge an idea into the Constitution that is not clearly present. How his pragmatic approach to reading the Constitution and making law differs from those at use now is not precisely clear, but it seems that an abandonment of the pretense to legal formalism can only be the start of a more honest political Court.