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.
Posts
