Posner on Realist Judging

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a candid, personal, experience-based approach throughout.

In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the distinctive functions of trial court and intermediate appellate judges, judicial “googling” (he is an enthusiast), appellate advocacy, and many other matters beyond those conjured up by an image of the “judicial process” as the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of “urgent concern” to figure out “how the federal judiciary can cope with the increasing complexity of federal cases.” (p. 3) A question is “complex,” in this usage, “when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad.” (P. 3) Appropriately, then, the book’s non-monadic reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex matters more generally.

Those familiar with Posner’s more recent extrajudicial writings will see much that is familiar in both style and substance. Two middle chapters on what Posner describes as “coping strategies for appellate judges,” for example, are reworked versions of a published lecture Posner delivered on judicial restraint, and a development and synthesis of three items Posner wrote for The New Republic. Parts of Chapters 4, 5, and 8, to pick another example, are drawn from a different published lecture distilling Posner’s “beliefs concerning opinions and advocacy into practical advice for federal court of appeals judges, their law clerks, and the lawyers who practice before these courts.” Even apart from the addition of new material and clarifying edits, the revised versions of Posner’s older materials are worth reading and digesting as parts of a larger whole; their location in the book reveals Posner’s understanding of the overall coherence of these extrajudicial writings.

The book’s integration of earlier materials is not, however, uniformly successful. The chapters on judicial restraint (Chapter 6) and interpretation (Chapter 7), for instance, fit uneasily into the book because Posner’s reduction of these ideas to judicial attempts to escape from complexity are unconvincing. The chapter on judicial restraint would have fit better packaged as one influential federal appellate judge’s personal evaluations of some of his predecessors’ attempts to address constitutional questions (which the best parts of this chapter provide). And the chapter on interpretation should have been left out or at least significantly condensed and combined with the chapter on judicial restraint.

More generally, the most illuminating portions of the book are those in which Posner the judge offers experience-based advice and insights to those muddling through the judicial process daily, rather than those in which Posner the public intellectual takes on rivals. “I may be a good judge, a bad judge, or an indifferent judge,” Posner writes at the outset, “but I am undeniably an experienced judge.” (P. 2) Indeed. Appointed to the United States Court of Appeals for the Seventh Circuit by President Reagan in 1981, Posner has written more than 2,800 published judicial opinions, heard over 6,000 oral arguments, and read more than 15,000 briefs; he has also conducted (a much smaller but non-trivial number of) trials, pretrial proceedings, and settlement negotiations, participated in three-judge district court decisions, and decided appeals as a visiting judge in the Federal Circuit. Posner’s reflections on the cumulative experiences of his three-plus decade judicial career illustrate his lived commitment to Holmes’s aphorism about the life of the law.

Because understanding judges’ limitations and weaknesses is as important to him as understanding their capabilities and strengths, Posner reveals aspects of the judicial process that are usually hidden from all but judges, as well as others that remain hidden from or ignored by the judges themselves. In discussing post-argument conferences, for example, Posner asserts that judges “for the sake of collegiality often pull their punches in stating their view of how the case should be decided.” (P. 129) And he adds that “[o]nce a judge has indicated his vote in the case, even if tentatively, concern with saving face may induce him to adhere to his vote in the face of the arguments of the other judges, who moreover may be reluctant to press him to change his mind, fearing they’ll offend him by doing so.” (P. 129) Nor does the writing process necessarily bring previously unappreciated analytical and legal difficulties to light. Having entered laterally after a career path that encouraged them to act more as editors than as writers, most judges delegate opinion writing to law clerks. And although law clerks are “on average sharper analytically than their judge, law clerks are reluctant to argue with the judge.” (P. 255) A clerk may develop doubts “about the soundness of his judge’s take on a case . . . when in drafting the opinion the clerk discovers a problem that neither he nor his judge had noticed.” (P. 255) But that is typically too late: “The clerk will be tempted to paper over the problem rather than admit to his judge that he had failed to provide accurate advice before the argument and the vote. His job now is to defend the vote.” (P. 255)

Posner not only describes pitfalls in the decision process for appeals, but also explains some of what he does (and thinks other judges should do) to avoid or minimize them. One theme running through these counsels is the importance of candor. Within his office (no archaically termed “chambers” for him), Posner insists that clerks call him by first name because he wants them to be entirely candid and direct, “brutally so if they want.” (P. 127) Appellate judges should write their own opinions, Posner contends, as clerk-drafted products tend toward obfuscatory formalism. And these opinions should identify and discuss all the considerations (not just the formal legal considerations) that the judge is conscious of influencing the judge’s decision. Opinions written for other judges on a panel may require the judge “to compromise his views or blunt the opinion’s rhetorical thrusts,” and “concern with preserving collegiality, as well as consideration for the feelings of litigants and their lawyers, may properly induce a judge to turn down his rhetorical volume.” (P. 267) But while rejecting “let it all hang out” as a judicial motto, Posner insists that an opinion can and should be candid even while decorous. (P. 267)

To organize his observations and the prescriptions that emerge from them, Posner deploys a fundamental contrast between legal formalism and legal realism, which he develops throughout the book. The formalist acts as if conventional legal materials provide right answers in all cases, while the realist recognizes that this is not so and aims for reasonable and sensible results. In difficult cases, the formalist sees primarily legal complexity, while the realist sees primarily factual complexity. Posner wants judges to be realists. But who doesn’t (at least some of the time and with respect to some matters)? Certainly, no formalist that I am aware of fits Posner’s description of the type early in the book: someone who believes “that all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role.” (P. 1)

Fortunately, the book’s many incisive mid- and low-level observations have value in themselves, even if one rejects Posner’s seemingly across-the-board advocacy of greater realism. And one should. The reader is put on guard to beware a false dichotomy when Posner describes formalism narrowly and then describes realism as “everything in legal thought and practice that is not formalism” (P. 5). Sure enough, when Posner later elaborates on the distinction, he describes “extreme formalism” and “extreme realism” as two ends of a spectrum along which American judges can be located. And yet the two are not really polar opposites even in Posner’s view. He renders all-the-time judicial realism plausible only by defining realism to subsume formalism. He writes that the good realist judge on a federal court of appeals acts like a formalist most of the time: “Because most appeals to federal courts of appeals can be decided satisfactorily by straightforward application of known and definite law to the facts of the case, and because most trial judges and intermediate appellate judges take seriously their role as modest law appliers—but also because it takes less time and effort to dispose of a case by application of known law to fact than by forging new law—federal court of appeals judges most of the time do decide appeals formalistically.” (P. 107) To which one should add: They would be bad judges if they did not decide these appeals formalistically.

Hints of the importance of formalism even at the Supreme Court level come through in a couple of passing observations Posner makes about Justice William O. Douglas. Here is someone who would seem to be the quintessential judicial anti-formalist. Yet Posner qualifies his one positive assessment of Douglas by limiting it to the time “before he soured on judging.” (P. 41) What exactly was it that Douglas soured on? And even though Douglas wrote his own opinions—as Posner thinks good appellate judges should—Posner rates those opinions as “the weakest” among those he saw when clerking for Justice Brennan. (P. 21) The reason they were weak, Posner says, is not that Douglas “was dumb” but “rather because he was bored.” (P. 21) What was he bored with, if not the bread-and-butter legal reasoning (most of it formalist) that makes up the daily fare even of Supreme Court Justices?

There is no reason that formalism in theory cannot match formalism in practice by subsuming a dose of realism. Posner acknowledges as much about formalist practice when he observes that modern formalists include “low-level practical concerns” in their judicial reasoning and then states that “modern formalism is better described as a tendency than as a dogma.” (P. 116) So, too, with the modern judicial realism that Posner endorses. Despite the impression one gets from the beginning of the book, by the end of Posner’s Reflections on Judging, it is clear that whatever else it may be, modern judicial realism is not best understood as anti-formalism.