Posner on Realist Judging

http://courtslaw.jotwell.com/posner-on-realist-judging/

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Kevin C. Walsh
Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of
extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the
genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a
candid, personal, experience-based approach throughout.
In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes
creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law
clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the
distinctive functions of trial court and intermediate appellate judges, judicial googling (he is an enthusiast),
appellate advocacy, and many other matters beyond those conjured up by an image of the judicial process as
the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of urgent concern to
figure out how the federal judiciary can cope with the increasing complexity of federal cases. (p. 3) A
question is complex, in this usage, when it is difficult by virtue of involving complicated interactions, or, in
other words, involving a system rather than a monad. (P. 3) Appropriately, then, the books non-monadic
reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex
matters more generally.
Those familiar with Posners more recent extrajudicial writings will see much that is familiar in both style and
substance. Two middle chapters on what Posner describes as coping strategies for appellate judges, for
example, are reworked versions of a published lecture Posner delivered on judicial restraint, and a development
and synthesis of three items Posner wrote for The New Republic. Parts of Chapters 4, 5, and 8, to pick another
example, are drawn from a different published lecture distilling Posners beliefs concerning opinions and
advocacy into practical advice for federal court of appeals judges, their law clerks, and the lawyers who practice
before these courts. Even apart from the addition of new material and clarifying edits, the revised versions of
Posners older materials are worth reading and digesting as parts of a larger whole; their location in the book
reveals Posners understanding of the overall coherence of these extrajudicial writings.
The books integration of earlier materials is not, however, uniformly successful. The chapters on judicial
restraint (Chapter 6) and interpretation (Chapter 7), for instance, fit uneasily into the book because Posners
reduction of these ideas to judicial attempts to escape from complexity are unconvincing. The chapter on
judicial restraint would have fit better packaged as one influential federal appellate judges personal evaluations
of some of his predecessors attempts to address constitutional questions (which the best parts of this chapter
provide). And the chapter on interpretation should have been left out or at least significantly condensed and

combined with the chapter on judicial restraint.

More generally, the most illuminating portions of the book are those in which Posner the judge offers
experience-based advice and insights to those muddling through the judicial process daily, rather than those in
which Posner the public intellectual takes on rivals. I may be a good judge, a bad judge, or an indifferent
judge, Posner writes at the outset, but I am undeniably an experienced judge. (P. 2) Indeed. Appointed to the
United States Court of Appeals for the Seventh Circuit by President Reagan in 1981, Posner has written more
than 2,800 published judicial opinions, heard over 6,000 oral arguments, and read more than 15,000 briefs; he
has also conducted (a much smaller but non-trivial number of) trials, pretrial proceedings, and settlement
negotiations, participated in three-judge district court decisions, and decided appeals as a visiting judge in the
Federal Circuit. Posners reflections on the cumulative experiences of his three-plus decade judicial career
illustrate his lived commitment to Holmess aphorism about the life of the law.
Because understanding judges limitations and weaknesses is as important to him as understanding their
capabilities and strengths, Posner reveals aspects of the judicial process that are usually hidden from all but
judges, as well as others that remain hidden from or ignored by the judges themselves. In discussing postargument conferences, for example, Posner asserts that judges for the sake of collegiality often pull their
punches in stating their view of how the case should be decided. (P. 129) And he adds that [o]nce a judge has
indicated his vote in the case, even if tentatively, concern with saving face may induce him to adhere to his vote
in the face of the arguments of the other judges, who moreover may be reluctant to press him to change his
mind, fearing theyll offend him by doing so. (P. 129) Nor does the writing process necessarily bring
previously unappreciated analytical and legal difficulties to light. Having entered laterally after a career path
that encouraged them to act more as editors than as writers, most judges delegate opinion writing to law clerks.
And although law clerks are on average sharper analytically than their judge, law clerks are reluctant to argue
with the judge. (P. 255) A clerk may develop doubts about the soundness of his judges take on a case . . .
when in drafting the opinion the clerk discovers a problem that neither he nor his judge had noticed. (P. 255)
But that is typically too late: The clerk will be tempted to paper over the problem rather than admit to his judge
that he had failed to provide accurate advice before the argument and the vote. His job now is to defend the
vote. (P. 255)
Posner not only describes pitfalls in the decision process for appeals, but also explains some of what he does
(and thinks other judges should do) to avoid or minimize them. One theme running through these counsels is the
importance of candor. Within his office (no archaically termed chambers for him), Posner insists that clerks
call him by first name because he wants them to be entirely candid and direct, brutally so if they want. (P.
127) Appellate judges should write their own opinions, Posner contends, as clerk-drafted products tend toward
obfuscatory formalism. And these opinions should identify and discuss all the considerations (not just the
formal legal considerations) that the judge is conscious of influencing the judges decision. Opinions written for
other judges on a panel may require the judge to compromise his views or blunt the opinions rhetorical
thrusts, and concern with preserving collegiality, as well as consideration for the feelings of litigants and their
lawyers, may properly induce a judge to turn down his rhetorical volume. (P. 267) But while rejecting let it all
hang out as a judicial motto, Posner insists that an opinion can and should be candid even while decorous. (P.
267)
To organize his observations and the prescriptions that emerge from them, Posner deploys a fundamental
contrast between legal formalism and legal realism, which he develops throughout the book. The formalist acts
as if conventional legal materials provide right answers in all cases, while the realist recognizes that this is not
so and aims for reasonable and sensible results. In difficult cases, the formalist sees primarily legal complexity,
while the realist sees primarily factual complexity. Posner wants judges to be realists. But who doesnt (at least
some of the time and with respect to some matters)? Certainly, no formalist that I am aware of fits Posners
description of the type early in the book: someone who believes that all legal issues can be resolved by logic,

text, or precedent, without a judges personality, values, ideological leanings, background and culture, or realworld experience playing any role. (P. 1)
Fortunately, the books many incisive mid- and low-level observations have value in themselves, even if one
rejects Posners seemingly across-the-board advocacy of greater realism. And one should. The reader is put on
guard to beware a false dichotomy when Posner describes formalism narrowly and then describes realism as
everything in legal thought and practice that is not formalism (P. 5). Sure enough, when Posner later
elaborates on the distinction, he describes extreme formalism and extreme realism as two ends of a
spectrum along which American judges can be located. And yet the two are not really polar opposites even in
Posners view. He renders all-the-time judicial realism plausible only by defining realism to subsume
formalism. He writes that the good realist judge on a federal court of appeals acts like a formalist most of the
time: Because most appeals to federal courts of appeals can be decided satisfactorily by straightforward
application of known and definite law to the facts of the case, and because most trial judges and intermediate
appellate judges take seriously their role as modest law appliersbut also because it takes less time and effort
to dispose of a case by application of known law to fact than by forging new lawfederal court of appeals
judges most of the time do decide appeals formalistically. (P. 107) To which one should add: They would be
bad judges if they did not decide these appeals formalistically.
Hints of the importance of formalism even at the Supreme Court level come through in a couple of passing
observations Posner makes about Justice William O. Douglas. Here is someone who would seem to be the
quintessential judicial anti-formalist. Yet Posner qualifies his one positive assessment of Douglas by limiting it
to the time before he soured on judging. (P. 41) What exactly was it that Douglas soured on? And even
though Douglas wrote his own opinionsas Posner thinks good appellate judges shouldPosner rates those
opinions as the weakest among those he saw when clerking for Justice Brennan. (P. 21) The reason they were
weak, Posner says, is not that Douglas was dumb but rather because he was bored. (P. 21) What was he
bored with, if not the bread-and-butter legal reasoning (most of it formalist) that makes up the daily fare even of
Supreme Court Justices?
There is no reason that formalism in theory cannot match formalism in practice by subsuming a dose of realism.
Posner acknowledges as much about formalist practice when he observes that modern formalists include lowlevel practical concerns in their judicial reasoning and then states that modern formalism is better described as
a tendency than as a dogma. (P. 116) So, too, with the modern judicial realism that Posner endorses. Despite
the impression one gets from the beginning of the book, by the end of Posners Reflections on Judging, it is
clear that whatever else it may be, modern judicial realism is not best understood as anti-formalism.
Cite as: Kevin C. Walsh, Posner on Realist Judging, JOTWELL (December 10, 2013) (reviewing Richard A.
Posner, Reflections on Judging (Harvard University Press, 2013)), http://courtslaw.jotwell.com/posner-onrealist-judging/.