March 10, 2016

"When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of 'priors.'"

Writes Judge Richard A. Posner in a WaPo column titled "The Supreme Court is a political court. Republicans’ actions are proof."
Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. The tools I am calling priors can in principle and sometimes in practice be overridden by evidence. But often they are impervious to evidence, being deeply embedded in what we are, and that is plainly true of judging — not in every case but in cases that can’t be resolved by interpretation or some other decision-making tool that everyone understands and uses in an identical way. The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion....

I may seem to be criticizing the court by calling it politicized. That is not my intention....
IN THE COMMENTS: PB says: "Singling out one party over the other is idiotic, in spite of my respect for Posner."

I think Posner would admit that if the parties were reversed and the President were Republican and the Senate Democrat that the same strategies would be followed by the President and the Senate. His theory does dictate that, even though the WaPo headline writer makes this piece looks like a swipe at Republicans.

This reminds me of a passage I was just reading in the great book about the Supreme Court, "The Brethren.": "Brennan liked to tell his clerks that Harlan had been the 'only real judge' on the Court in the years of Brennan’s service, the only Justice who weighed the legal issues with sufficient dispassion."

ADDED: Posner makes much of judges' religion and elsewhere in WaPo today there's "What would a Hindu justice mean for the Supreme Court?" (by Julie Zauzmer). One of the buzzed about names is Sri Srinivasan, who is Hindu, so Zauzmer — speaking with much less depth about law than Posner — asks how Hinduism might affect "religiously charged issues like abortion and gay rights." She finds an expert on Hinduism who isn't thinking about Posner's notion of "priors" when he tells her:
“There is no such thing as a Hindu belief about, say, abortion or stem cell research right now which would influence any particular case. Any Hindu who occupies a judicial position will interpret the law as it is, rather than through his or her religious viewpoint... There is no Hindu baggage, as such, at all.”
By the way, if we're going to think about the religion that exists in the minds that will be making decisions for us, and I think it is something important to consider, we ought to remember that there are currently no Protestants on the Court. Yes, a Hindu would give us another "first," but in terms of representing the majority of Americans and the history and tradition of America, the complete absence of Protestants is dramatic. 

28 comments:

David Begley said...

As if Bill Brennan wasn't political.

PB said...

Singling out one party over the other is idiotic, in spite of my respect for Posner.

traditionalguy said...

He just said Culture drives what we call law and politics, but he used more words. The Mystery of Judging is not that hard after all.

SteveR said...

Yeah the first indication of intellectual fraud is trying to sound smart while pointing fingers.

Bill, Republic of Texas said...

If conservative judges are the problem then why are the liberal judges in lockstep with each other?

Posner may want to go back and rethink his entire premise.

So this guy is supposed to be smart?

Gusty Winds said...

I may seem to be criticizing the court by calling it politicized. That is not my intention....

Damn...I thought there was about to be some honesty. The Court is politicized.

We know the trend of decisions and outcomes if a liberal replaces Scalia.
We know the ideological balance of the Wisconsin Supreme Court if Joanne "Lincoln Owned Slaves" Kloppenburg defeats Rebecca "Just Say No To Sex" Bradley.

Is there some type of requirement to pretend these judges are impartial in the legal community and law schools? The same type of make believe doesn't exist in the general public.

n.n said...

It's a court of social consensus, certainly. He's probably thinking of selective exclusion under the "=" ruling. Or progressing the status quo with Obamacare.

It is also a well known institution of the state cult that passes laws dictated by the doctrines of a faith-based religion (e.g. abortion rites). A religion that is notable for being pulled from the darkest fringes of a penumbra or secular "god".

Paddy O said...

On political questions, the Court is political.

So the answer would seem to be not to jump into political questions, but it's a fuzzy line and so they assume there's nothing that can't be considered and in doing so undermine their reputation. But they don't get elected so their reputation hardly matters.

Chuck said...

Posner (who used to be one of my favorite federal judges in the nation) stumbles his way into a real problem for himself. Here is a single Posner paragraph, talking about the historical origins of constitutional and statutory law:


This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. Eighteenth- and 19th-century politicians, and many 20th-century ones as well, did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.


Posner skipped over one very notable example; same-sex marriage. Posner was the author of a Seventh Circuit opinion, preceding Obergefell, in which state law bans on same-sex marriage were struck down in Posner's all-powerful judicial wisdom.

But unlike electronic surveillance, sound trucks or flash-bang grenades, homosexuality was known at the time(s) of the ratification of the constitution, the enactment of the Bill of Rights and the drafting of the Fourteenth Amendment. And homosexual conduct was legally banned in virtually every legal jurisdiction in the western world. Same sex marriage was beyond the pale.

Homosexuality -- unlike radio broadcasts, airline travel, or internet cloud data storage -- was not unforeseeable and a blank slate for legal scholars. Homosexuality has a legal history.

So I don't know if Posner was being clever or deceitful in this column. He was not being forthright, that is certain.

wildswan said...

The liberals are ignoring the terrible attacks on conservatives by Democrats and teacher's union supporters - the SWAT teams at six a.m. assaulting the homes of conservative thinkers, the gag orders, the suggestion that their thoughts were criminal. Modern liberal presuppositions allow them to disregard this kind of state misconduct, to regard it as irrelevant. The Wisconsin Supreme Court was better than law enforcement or journalism - it called this lawlessness lawlessness. But how long will the liberals on the Court be different from prevailing liberal trends? That's what Posner knows.

Terry said...

The new Posner is different from the old Posner. People used to talk about him as a possible Republican appointee to the SC. No more.
The old Posner would have noticded that he had reached a self congratualatory conclusion: I'm not religious, and that makes me a better judge than those religious people whose decisions I don't like!

Gahrie said...

Writes Judge Richard A. Posner in a WaPo column titled "The Supreme Court is a political court. Republicans’ actions are proof."

The Supreme Court has been political ever since Marshall created the controversy that allowed him to create judicial review.

traditionalguy said...
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traditionalguy said...

The big words are the way a Profession creates itself a market. MDs use Greek. Attorneys use legalese.

But a good lawyer is worth more than he costs. They also serve you as consigliere in your war, that can be trusted to be on your side. Really.

Henry said...

The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion

I think this shows a failure of imagination. Posner is playing it awfully safe.

JCC said...

I agree with Chuck. In historical fact, many of the issues considered (by the Fed appellate courts) were truly addressed in contemporary law and thought by 18th and 19th century lawmakers at the time they constructed the original document and subsequent amendments. Their intentions were certainly well known in such instances, and don't take much interpretation. Certainly, under those selfsame thoughts, the states had the right to alter existing statutes and there was an ability for voters or legislators to make those changes. But judges like Posner have taken upon themselves some ability to discern hidden rights which would never have occurred to the original writers. Posner ignores this inconvenient fact, yet writes this little slam on the Republicans, and the WP doubles down with a clip of Senator Leahy, the prototypical liberal blowhard, complaining about schemes "behind closed doors." Cute.

The (moderating) method of appointing SC justices clearly anticipated a political court, by giving the other two branches a means of negating each other over any given choice. So Posner is pretty much stating the obvious in his Giant Intellect fashion. But it confers his cachet on the "Republicans are mean" thing.

buwaya puti said...

"The big words" indeed. Reality doesn't need so much blather to describe.
Like everything else in government the court is a political body and nothing but. Everything it deals with is in some way political. It is a second legislature and often a second executive. It's decisions are the result of balances of power, not reason or precedent. The process is ritual, merely that.

Quayle said...
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Quayle said...

Obviously, upbringing, training, personal and career experience, religion and the tendencies and habbits that come from national origin, and the character born of one's personal decisions, and ideology and politics - obviouisly these are not all the same.

For example, some parents bring up their children in an environment of unquestioned and unquestinging hatred of others.

Some bring up their children with an idiology that there are good people (identified by the fact that they believe and do A) and bad people (identified by the fact that they believe and do B), and that bad people can never be good people.

Some bring up their children to belive that the color of one's skin is an indicator of character. (And no, I'm not talking about Jim Crow south in the 1950s)

Some insill in their children the belief and world view that each person is a beloved spirit son or daughter of heavenly parents, and, as such, each has a divine nature and destiny. That we are all brothers and sisters in this heavenly family, and therefore, though we don't need to tolerate abuse or violence from others, nevertheless all "others" are deserving of our respect, help, suppose, forgiveness, and love.

Of which upbringing would you want the judge to be, had you a matter of significant interest before the court?

Hagar said...

The members of the Supreme Court are not "judges" but "justices."
SCOTUS sets rules that the agencies of government are to follow. This is by definition "political." Except for "Polident" and some other such words, all the words with "poli-" in them are derived from the ancient Greek word for "city state" and has to do with the conduct of government.
The rules that SCOTUS sets are supposed to stay within the boundaries of the Constitution, but that still leaves a lot of room for interpretation. The Constitution is not like Obamacare with 40,000 codes for pricing medical treatment (and there are still diseases not known to the CDC!).

Larry J said...

"The Supreme Court is a political court. Republicans’ actions are proof."

Strange, I seem to recall this SC nominee named "Bork". The Democrats were pretty blatantly political about his nomination. Clarence Thomas, too. I'm sure there were other Republican nominees who were harshly treated by Democrats for political reasons. For him to emphasize the Republicans in this case is rather ignorant.

wholelottasplainin' said...

Hinduism condemns abortion, with exceptions:

"Unless a mother's health is at risk, traditional Hindu teachings and texts condemn abortion because it is thought to violate the religion's teachings of non-violence. The Vedic texts compare abortion to the killing of one's own parents.[3] The general value system of Hinduism teaches that the correct course of action in any given situation is the one that causes the least harm to those involved. Thus in the case where the mother's life is at risk, abortion is considered acceptable.[3]"

So a Hindu justice would not escape dealing with his religion's moral views on that topic, just as Jews and Christians on the bench do.

Bushman of the Kohlrabi said...
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Bushman of the Kohlrabi said...

Before his death, Scalia, a solidly conservative and devoutly Catholic justice, gave the conservatives a definite majority on the court that pushed the court in a conservative direction

Did he really push the court in a conservative direction? In what ways has our society become more conservative due to the courts decisions? I would say that, at best, conservative justices have been little more than speed bumps in slowing the constant, grinding move of society to the left.

Static Ping said...

The Supreme Court has always been a political animal to some extent. When the federal government was small, this did not matter as much since the amount of power that any part of the government could command was limited.

There was also an assumption by the founders that the three branches of government would be jealous of their powers, regardless of political affiliation, and were given the tools to defend them. If the Supreme Court became a law giving body, which I posit it has become, then the Congress would act to rein it in since law giving is the job of Congress. After removing a few justices, the rest would get the message. Unfortunately, this assumption has proven false. The Democratic Party's platform is essentially to have an activist court that (a) can make laws so the party does not have to take controversial votes and (b) those laws then cannot be reversed by other means except an amendment process which is very difficult. To a lesser extent, I think the Republican Party appreciates not having to deal with some issues legislatively, even if the outcome is not favorable to their base. The separation of powers has broken down.

There is also the matter of the bureaucracy, which has become the de facto fourth branch of government. I'm pretty sure the founders did not anticipate that.

But, yes, organizations created by human beings are political animals. Duh.

mccullough said...

But the conservative decisions are usually more in line with public opinion. Heller wasn't a bolt from the blue. More than 40 states allowed concealed carry of handguns, more than enough to get a Constituional Amendment.

Roe struck down the abortion laws of more than 40 states. Obergefell struck down the marriage laws of more than 30 states.

It isn't that judges follow "priors" or are political. It's that they are out of step with a majority of Americans.

mccullough said...

Hindus are much less likely not to recognize a constitutional right to eat meat, even though eating meat has a long tradition in this country making it more of a fundamental right than abortion or sodomy. When San Francisco bans cheeseburgers, Sri will not stand in their way.

SeanF said...

That headline's interesting. Althouse took it as a "swipe at Republicans," and it does come across that way. But it's not, literally.

It's just a variation of "Where there's smoke, there's fire," with the politicized court being the fire and the Republican's actions being the smoke. But that expression was never meant to convey an accusation that the smoke was causing the fire, but the opposite.

In other words, it's only saying that the Republicans are responding to a politicized court, not that they're creating one.