Reactionary beasts and the politics of law

The op-ed by a couple of Federalist Society Nexus 6 models the other day, arguing that the 14th amendment doesn’t necessarily grant birthright citizenship, at least if you squint just right and treat what one guy said in 1862 about the issue as extremely important etc., reminded me of just about the last thing Richard Posner said in public, seven and a half years go (he has since retreated into the terrible silence that is part of the slow death that is Alzheimer’s disease).

The occasion was an interview (gift link) with the New York Times upon his announced retirement from the federal judiciary.

He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

I asked him about his critics, and he said they fell into two camps.

Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”

“A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”

He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”

To the extent I teach law students anything of lasting value, it’s the ability, hopefully, to understand exactly what is being said here and what the stakes are for law and politics.

So lets give it a go in a blog post as opposed to in a three-year postgraduate program:

The formalist conception of judging is that judges simply follow rules created for them by the authoritative sources of law. They do this without regard to whether those rules are good or bad in themselves, and they only go beyond or outside the rules in those instances (very rare to literally non-existent, depending on how strong the formalist ideology of the judge is) where the rules don’t provide an answer. Doing anything else is engaging in politics rather than law, and is bad axiomatically, because judges should judge not legislate.

The pragmatic conception of judging is that that law is a specialized form of politics, and that judges should do the right thing, politically speaking, to the extent that the formal legal materials allow them to do so. The pragmatic conception of judging doesn’t logically entail that the formal legal materials are generally ambiguous/manipulable, but as a practical matter the pragmatic conception treats them, as Posner explicitly does, as being so, at least in the context of non-frivolous appellate court decision making.

Now a common source of confusion is the claim that these two visions, or ideal types, represent, respectively, a non-political and a political vision of law and judging. This is, or should be, obviously false, but it’s very difficult in our legal and political culture to get people to see exactly why it’s false. The reason this is false is that the formalistic conception of judging is every bit as political as the pragmatic vision. In other words, there’s no apolitical purely formalistic meta-law of legal interpretation that requires judges to be formalistic rather than pragmatic, nor indeed could there be, since such a hypothetical entity would itself be subject to an interpretive recursion loop (should the meta-law be interpreted formalistically or pragmatically? etc.). But it’s important to note that, in the American legal system anyway, there isn’t any such interpretive meta-law even in the most literal formalistic terms.

So when judges thunder from the bench — Antonin Scalia made his whole wildly inflated reputation from just doing this over and over — that judges who don’t follow the rules laid down for them by the Authorities are being lawlessly political, that’s straight-up question begging of the most egregious sort.

In other words, the question of whether judges should be strictly — to the extent possible, which is always a major caveat, especially in constitutional law — formalistic, or consciously political in their interpretations is itself always and everywhere a political question, and could not possibly be otherwise.

To translate what Posner is saying into the simplest lay terms, he’s arguing that a sincere attempt on a judge’s part to follow pre-existing legal rules rather than make politically independent judgements is normatively defensible, but what’s not defensible is to have bad politics and at the same time lie about this/delude yourself about what you’re actually doing, which is what reactionary beasts like Scalia, Alito, and the rest of the Federalist Five Families do.

The difference, Posner would have said when he could still say such things, between himself and Scalia was that Scalia had bad politics and lied all the time, probably to himself more than anyone else, about what he was actually doing.

That’s it.