West Law Report

Judge Posner: A Political Court

Judge Richard A. Posner’s FOREWORD: A POLITICAL COURT in Harvard Law Review (Nov 2005) (.pdf) (78 pages):

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the fficial?explanations for judicial phenomena proffered by insiders ?in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. The social scientist asks, without preconceptions drawn from the professional legal culture, why the Court decides cases as it does and in the form in which it does (long, cholarly?opinions, etc.), and what the consequences of the decisions are. The inquiry delves into such matters as the ideology and temperament of particular Justices; the appointments process; the Court caseload, procedures, and strategic interactions with Congress and other parts of government; behavioral models of judges; the influence of the Zeitgeist on judicial decisions; and ?critically ?the nature and strength of the constraints that operate on the Justices. The goal is not only to under-stand judicial behavior at the Supreme Court level, but also to understand the consequences of that behavior ?for example, to estimate how the crime rate, the number of people in prison, and the incidence of error in the criminal process would be different had the Supreme Court decided landmark criminal cases, such as Gideon v. Wainwright or Miranda v. Arizona, in favor of the government, or how our politics would differ if the Court had not entered the legislative reapportionment thicket in cases such as Baker v. Carr and Wesberry v. Sanders. An interesting recent literature, written from a diversity of political perspectives ?surprisingly, mainly from the Left ?asks the disquieting question whether the net benefits of federal constitutional law are positive, including the subsumed question whether constitutional law has really made much of a difference in the nation policies, values, and practices.

The other way in which to discuss the Court work ?and the way more familiar to lawyers, law professors, and judges ?is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) ?more often condemns them, arguing that they are mistaken, unsound ?more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy ?a continuation of brief writing and opinion writing by other means ?but it is not wholly unrelated to the first type, the social-scientific study of constitutional law. The behaviors and consequences that a nondoctrinal perspective brings to light can be, or can explain, things the normative analyst deplores (more rarely approves). So if, like Professor Henry Hart in his famous Foreword, you thought the Court was making frequent legal errors, you might attribute this to structural conditions ?to the overuse of summary reversals or, as Hart himself believed, to an excessive workload (the excess being due in part to the Court proclivity for granting certiorari in unimportant cases).
My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; indeed, I shall perforce rely to a degree on that most dubious of methodologies, introspection ?specifically, on the impressions that I have gleaned from being a federal appellate judge for the last twenty-four years. I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart.

Part I presents statistics that bear on two issues: the tendency of the Court to behave egislatively?and the perception of the Court as an increasingly constitutional court. Part II presents my main thesis, which is that to the extent the Court is a constitutional court, it is a political body. I distinguish there between two forms of political judging, the ggressive?and the odest? my preference is for the latter. Part III examines several alternatives to the political conception of the Court: the Court as expert administrator, the Court as institutionally constrained to behave in a lawlike manner, the Court as moral vanguard, and the Court as a cosmopolitan court searching for international legal consensus. The first two alternatives are descriptively inaccurate; the latter two are aggressively political approaches covered by a veneer of legal reasoning. Part IV discusses, with reference to several recent cases, the Court potential to be a pragmatic decision maker of the odest?kind introduced in Part II.

Judge Posner: Privacy, Surveillance, and Law

Judge Richard Posner in Surveillance Symposium of University of Chicago Law Review (Feb 2008) (.pdf) (16 pages):

“Privacy” is a word of many meanings. The meaning that is most relevant to this essay is secrecy—the interest in concealing personal information about oneself. But I need to distinguish between a per-son’s pure interest in concealment of personal information and his instrumental interest, which is based on fear that the information will be used against him.

In many cultures, including our own, there is a nudity taboo. Except in the sex industry (prostitution, striptease, por-nography, and so forth), nudist colonies, and locker rooms, people generally are embarrassed to be seen naked by strangers, particularly of the opposite sex, even when there are no practical consequences. Why this is so is unclear; but it is a brute fact about the psychology of most people in our society. A woman (an occasional man as well) might be disturbed to learn that nude photographs taken surrepti-tiously of her had been seen by a stranger in a remote country before being destroyed. That invasion of privacy would not have harmed her in any practical sense. Yet it might cause her at least transitory emo-tional distress, and that is a harm even if it seems to have no rational basis (in that respect it is no different from having nightmares after watching a horror movie—another emotional reaction that is real de-spite being irrational from an instrumental standpoint). But if the stranger used the photos to blackmail her, or, in an effort to destroy her budding career as an anchorwoman for the Christian Broadcasting System, published the photos in Hustler magazine, she would have a different and stronger grievance.

In many cases of instrumental concealment of personal informa-tion, the motive is disreputable (deceptive, manipulative): a person might want to conceal his age, or a serious health problem, from a pro-spective spouse or his criminal record from a prospective employer. But the motive is not disreputable in all cases; the blackmailed woman in my example was not trying to mislead anyone in resisting the publi-cation of the photos.

Judge Posner in Chicago University Law Review

Posted in Judge Posner, University of Chicago Law Review by mrkooenglish on May 17, 2008

Just found the last (Jan, already) issue of The University of Chicago Law Review is a Special Commemorating Twenty-five Years of Judge Richard A. Posner. As a fan of Judge Posner, I plan to read them all.