Judge Not

While we battle over who our judges are, what matters most is how they judge.

There is hardly a political question in the United States,” Alexis de Tocqueville observed in Democracy in America, “which does not sooner or later turn into a judicial one.” What was true in the early nineteenth century is eminently true today, and that is why the battles over who sits on the Supreme Court and other courts are so often contentious. But once these important issues arrive in front of a court, how do judges judge? How do they arrive at decisions?

In their recent Supreme Court confirmation hearings, John Roberts and Samuel Alito offered similar answers to this question. Judges, or at least the good judges who are not “activists,” apply the law and do not make it. They remember, in Roberts’s memorable image, that they are umpires and not players up at the plate. Soothing stuff, but it turned out to be a poor predictor of subsequent behavior. The Court has taken a hard right turn in the past year; if the Justices are umpires, the strike zone seems to have changed. A reasonable observer might conclude that there may be more to judging than the calling of balls and strikes–and also that Senate hearings aren’t the best place to get a candid view of the judicial mind.

Coincidentally, two of our most eminent legal thinkers, Ronald Dworkin and Richard Posner, have recently released books on the topic. Each has written more than a dozen books in addition to scores, if not hundreds, of law review and popular-press articles. Each has deeply influenced legal scholarship and judicial decisions; both have been cited by the Supreme Court in important cases involving issues from physician-assisted suicide to gay rights. Posner is, moreover, a judge himself. Their views on the judiciary will not only be among the most incisive and informative, but they will also likely have the biggest impact on the course of future decision-making. In other words, if you want to know how the courts work and will work, you need to read Dworkin and Posner.

And it is particularly valuable to compare the two because they have built their careers on such different foundations. Posner is a champion of pragmatism; he is an icy rationalist who achieved early notoriety with the suggestion that adoption agencies be allowed to pay women considering abortion to give birth and turn over the baby instead. Dworkin, in contrast, relies on principle, insisting that philosophical reasoning will lead to unique, right answers in even the hardest of cases. Writ large, these positions are the polar opposites of American legal thinking, and the tension between the two has driven much of its recent history. Watching the two men square off is not too far removed from watching American legal theory itself unfold, and the future of American courts as well. But on close examination, their similarities prove much greater than their differences, suggesting that the conventional dichotomy between meek judicial umpires and nefarious judicial activists sets up a fundamentally false choice–and that when it comes to the thorniest judicial issues of our day, like abortion, racial preferences, and gun control, the proper approach may be one that transcends the pragmatic/principled dichotomy that Posner and Dworkin embody.

Posner and Dworkin certainly see themselves as opposites, and as might be expected in academic circles, their differences have not kept them apart but rather pushed them together, in sometimes less-than-friendly circumstances. Posner’s 1999 book The Problematics of Moral and Legal Theory was described by one reviewer as a “near-hysterical” attack on Dworkin and his philosophical approach to judging. Dworkin’s own assessment of the book, in The New York Review of Books, denounced it as “triumphal anti-intellectualism” with some arguments that were “very weak” and others “even worse.” Posner wrote in to observe that Dworkin’s review was “so unmistakably a personal attack that [he] would be poor-spirited not to respond” and served to illustrate his thesis that academic moral philosophizing did not improve one’s moral behavior.

In short, the Posner-Dworkin relationship has somewhat the flavor of that between Sherlock Holmes and Professor Moriarty, though it is hard to say who is who. Posner’s hyper-rationality suggests Holmes, but so does Dworkin’s ability to extract the right answer to hard cases from the slenderest clues. And neither, to be fair, is a good fit for a criminal mastermind. When they shared the American Law Institute’s Henry Friendly Medal for Outstanding Contributions to the Law in 2005, banquet attendees might have feared (or hoped) to see them tumble off the dais locked in a death grip, like Holmes and Moriarty over Reichenbach Falls. Photographs of the event reveal no such occurrence. Still, the two remain frequent presences in each other’s work. Posner is one of the primary targets in Dworkin’s collection of essays, Justice in Robes, while Dworkin haunts Posner’s latest, How Judges Think, even when he is not explicitly mentioned.

How Judges Think is as direct in its goal as its title suggests. Posner was “struck,” he reports in the introduction, “by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors.” The book, he continues, “parts the curtains a bit.”

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