Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them. Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way. It shows Posner, an appellate judge on the Seventh Circuit and one of the leading figures in the economic analysis of law, at his incisive best—scorching defective constitutional theories and judges who apply them inconsistently—and his own approach, legal realism, at its problematic worst.
Posner’s concern in this work is the growing complexity facing the federal judiciary, which manifests internally in bureaucratic sprawl—judges must now, for example, manage increasingly large staffs—and externally in the intricacy of systemic interactions, especially technological ones, involved in cases. Rather than wrestling with the beast of complexity, judges try to tame it with simplistic constitutional theory, and therein, Posner believes, lies their mistake.
Blending the personal and professional with the theoretical—the book contains a lengthy and engaging autobiographical essay, as well as practical counsel on such topics as how judges should manage clerks, how attorneys should persuade judges and how both should write—Posner mounts a sustained attack on legal “formalism,” the attempt to reduce the judicial craft to a process of clinical logical deduction. Legal “realism,” by contrast, embraces in the open what Posner contends formalist judges do behind the curtain:
“The core of a defensible legal realism,” he writes, “is the idea that in many cases, and those the most important, the judge will have to settle for a reasonable, a sensible, result, rather than being able to come up with a result that is demonstrably, irrefutably, ‘logically’ correct. Law is not logic but experience, as Holmes famously put it.” (6)
Often, Posner acknowledges, cases can be resolved by appeal to formalism: the logical application of law to circumstance. Indeed, pragmatism, believing the law ought to be settled and predictable, accepts formalism as a “special case.” “But it is not always possible.” The reasons for this are significant. They include “the absence of disciplined legislative processes,” which leave laws ambiguous; “the difficulty of amending the Constitution,” which compels courts to “”engage in loose interpretation of it”; and “the breadth of explicitly judge-made law,” by which Posner means common law, including of the federal variety, “which federal judges make up.” (107)
In these cases where formalism fails, he argues, an active realism is the only option—and it is not, apparently, a reluctant one. “The cases in which judges play a legislative role yield the decisions that shape the law. They are not only the most important and most interesting cases but also the most challenging ones.” (108) Whereas the formalist judge cannot hope to apply formalism consistently, the realist judge embraces formalism where it works but also rejects “judicial philosophy” (the scare quotes are Posner’s), “wants judicial decisions to ‘make sense’ in a way that could be explained convincingly to a layperson, and is a ‘loose constructionist,’” meaning he is interested in the purpose rather than the literal meaning of the text. “He does not draw a sharp line between law and policy, between judging and legislating, and between legal reasoning and common sense.” (120)
He is, instead, interested in the consequences of his decisions, and he will not resist the inevitability of his policymaking role, at least in certain circumstances. In these situations Posner wants realist judges to accept an active rather than a passive role. “When legislative purpose … is discernible, the realist judge is an interpreter or perhaps a helper. But often it is not discernible, and then the judge is the legislator and has to base decision on his conception of sound public policy within the limits legislators set.” (121)
This may sound like a warrant for judges to make untethered policy—it is; back to this presently—but Posner is at his provocative best in arguing that anti-realist judges carry the same badge and simply refuse to show it. His sixth and seventh chapters thus attack judicial self-restraint and originalism as inadequate and inconsistently applied attempts to cope with complexity.
Self-restraint, first theorized by James Bradley Thayer, epitomized by Justice Holmes and most recently defended by Judge J. Harvie Wilkinson III, has relied on a variety of premises, from Thayer’s belief that it would encourage constitutional deliberation in Congress to Alexander Bickel’s prudential (and patronizing) liberalism. None satisfies Posner, partly because he cannot share the confidence in the legislative process that, for various reasons, undergirds them.
His more interesting claim is that restraint is itself a pragmatic move. Judges, he argues, cannot avoid resolving cases. When a judge faces a case “that doesn’t yield to conventional legal reasoning … [h]e has to decide it, using whatever tools are at hand.” These are rarely formalistic. Holmes’ single-page dissent in Lochner, for example, utilized a gut-level assertion of “reasonableness,” a standard appropriated from Thayer. Posner says that Wilkinson, in pitting realism against restraint, misses the affinities between them. (168)
But this is unclear at best. Thayer’s restraint is linked to the principle of deference to elected bodies. So was Holmes’. Each may have been problematic, but neither constituted jurisprudential carte blanche. Posner’s realism does: note in the quotation above that the judge acts on “his” conception of sound public policy.
True enough, realism’s scope is limited, apparently to cases in which formal reasoning fails. But a standard of constitutional reasonableness—i.e., is it reasonable to believe a limitation on the number of hours bakery employees can work in a week is compatible with the Constitution?—is a very different question from whether such a limit is, of itself and on grounds of policy, reasonable. Restraint is, in a considerable sense, precisely what Posner says is impossible: a passive means of not resolving cases—that is, declining to interfere by leaving the decisions of political bodies undisturbed. To be sure, the judge decides, but the restrained judge in a significant sense decides not to decide. By contrast, Posner opts, explicitly, for an active judicial role.
Another flaw, “perhaps the fatal one,” of Thayer’s restraint is that “given the Constitution’s interpretive plasticity, a full-throated commitment to judicial self-restraint, the kind of commitment urged by Judge Wilkinson but shared by few other judges, would shrink constitutional law to very small dimensions.” (174) This is doubtless true, but Posner leaves unanswered why precisely it constitutes a defect, much less a mortal one. If complexity is the enemy, one means of simplification would seem to be admitting that the plain meaning of the Constitution is not—cover the children’s ears, or at least the lawyers’—all that complicated.
Still, Posner seems to harbor some sympathies for restraint, at least as a pragmatic choice. He betrays no such feelings for theories of interpretation that purport to ascertain the Constitution’s actual meaning. He accuses originalists like Justice Antonin Scalia, for whom he seems to harbor particular (although never personal) animus, of concealing a political agenda as a constitutional one: “In form, textual originalism is a celebration of judicial passivity; in practice, it is a rhetorical mask of political conservatism.” (179)
Textual originalism, on Posner’s reading, is inherently activist; it seeks to contain legislatures within narrow channels defined by a statute’s text but not its purpose. It thus “tilts toward ‘small government,’ a tilt that in today’s America … is a conservative preference.” (183) This much textualists would not, one suspects, deny. But it is not evident on precisely what grounds Posner lodges his complaint. Is he advocating restraint against activism? In the previous chapter he has just dissected the former, and throughout, he embraces an active over a passive role. It is the particular grounds of the activism to which Posner seems to object.
The clearer objection is that textualists are inconsistent in their textualism, the paradigmatic case of which, Posner argues, is Heller, in which the Supreme Court invalidated a District of Columbia handgun ban. The preamble of the Second Amendment, Posner asserts, plainly contextualizes its operative clause. Yet in his Heller opinion, Scalia, who disdains legislative history in other contexts, reads the preamble out of existence with a byzantine and cherry-picked history (“law office history,” in Posner’s telling) of gun rights.
Then, “[h]aving labored to produce an originalist justification for a right to possess handguns for self-defense, Scalia in Heller jettisons originalism by listing permissible restrictions on gun ownership” that sound pragmatic in character. (194) The extension of this right—an obvious restriction of the national government to preserve the authority of the states—to limit the states in McDonald v. Chicago, which Scalia joined, was more “remarkable” still (195), especially when compared to his “passionate … paean to states’ rights” in the Arizona v. United States immigration case.
The purpose of Posner’s attack on Heller and McDonald is not merely to illustrate that some originalists traffic in double standards. It is apparently, and this is where the difficulty ensues, to argue that originalism can accommodate no objective standards at all. Posner succeeds in making the first point. This is unsurprising, since originalists claim no exemption from the laws of mortal deficiency. As to the second, he would do well to refer to Robert Bork’s aphorism that judges live on a slippery slope; “they are not supposed to ski it to the bottom.” That one cannot be perfectly objective in the attainment of standards is not an excuse for abandoning them altogether. If originalism is the interpretive theory most conducive to objective standards, that may recommend it above others, if not above restraint.
Posner’s essential flaw lies in seeing no difference between the top and the bottom of a slippery slope. Since objective standards are not perfectly attainable, he seems to suggest, the slope is friction-free and judges are entitled—indeed, required—to legislate pragmatically. Here the relevant wisdom may come less from Judge Bork than from one’s mother, namely: If Justice Scalia jumps off a bridge, should Judge Posner do it too?
For this is the problem: He does. Where he seems strikingly unselfconscious is in failing to notice the extent to which the flaws he observes in other constitutional theories also apply to his own. Formal reasoning may not be able to attain objective standards fully, but realism does not even try to. Indeed, the substitution of personal beliefs for constitutional standards would appear to be even more tempting, if not outright necessary, in the case of realism than in originalism. After all, in the latter, standards at least nominally obtain. When Justice Scalia sticks his hand in the constitutional cookie jar, he can be called to account for violating his own aspirations; if Judge Posner does, he can reply the cookies were free for the taking.
This, in fairness, he might not deny. The theory is called “realism” for a reason, and one reality Posner wants us to accept is that no formal interpretive theory is capable of guiding judges seamlessly through all disputes. They must, he argues, legislate at least in some cases, and better to do it in the open.
But how? The answer cannot be “no” standards; Posner is not suggesting a free-wheeling process of judging by instinct. The closest he comes to answering that question hints at realism’s most troubling aspect. The suggestion is the standard of expertise. He wants judges to familiarize themselves with statistical regression (the same judges he proclaims incompetent to the practice of historical interpretation); expert witnesses to be technicians independently appointed by courts; law students to be required to take at least one course “of a purely scientific or technical character” (347); and so forth.
There is doubtless value in these suggestions; he may be right about all of them. But there is a certain sense in which they smack of the age-old Progressive belief—and this would be irony for a Reagan appointee known for hardheaded economic analysis—that most political questions have correct answers ascertainable if only experts were loosed to discover them.
“[F]ormalism,” he claims in his conclusion, “trades in obscurantism.” (357) It is opposed to the spreading of knowledge and light, presumably of the technical variety. Politics, in this formulation, is neither a noble nor a necessary calling but a nuisance, a distraction from the discovery of technical solutions to complex problems. The tyranny of judges is a familiar complaint. Posner’s solution may be worse. It distills to the tyranny of experts. That they would be draped in black robes only renders legal realism all the less appealing.
 Kenji Yoshino, “Holding Court: Richard A. Posner’s ‘Reflections on Judging,’” New York Times, November 10, 2013.
 See Wilkinson’s Cosmic Constitutional Theory: How Americans Are Losing Their Inalienable Right to Self-Governance (New York: Oxford University Press, 2012).
 For example: “Justice Scalia is one of the most politically conservative Supreme Court Justices of the modern era—anyone doubting this should read his vitriolic partial dissent in Arizona v. United States. . . .” (182)
 Posner provides an equally lacerating takedown of Akhil Amar’s liberal interpretivism. I emphasize it less because I trust Amar’s fanciful America’s Unwritten Constitution is less apt to be persuasive to readers here.
The Tempting of America: The Political Seduction of the Law, (New York: Touchstone, 1990), 169.