Richard Posner on Theories of Judicial Behavior

Richard Posner on Theories of Judicial Behavior

• 1.
  1 LEGAL THEORY JUDGE POSNERON JUDICIAL BEHAVIOR Richard A. Posner (2010). ‘Nine Theories of Judicial Behavior,’ How Judges Think (Cambridge: Harvard University Press), pp. 19-56. INTRODUCTION How do judges really think? This is by no means an easy question to answer. Judge Richard A. Posner points out that there are as many as nine theories of judicial behaviour, but none of them can describe all the concerned aspects. So what Judge Posner decides to do in this essay is to simply describe all these nine theories in the attempt to set out what is at stake in studying judicial behaviour. These theories are positive – i.e. they explain how political and legal theorists think judges really behave. The reason that judicial behaviour is important is that it helps legal theorists to understand the rationale behind judicial decisions. The stability and continuity of the law depends on being able to predict to some extent what judges will do in any given situation. That however does not mean that either theorists or judges are able to reduce the legal system to a collection of rules though they toy with such a possibility every now and then. But, nonetheless, what students of the law need to do is to apply their minds seriously to explaining how judges think and behave. Reading Judge Posner’s book is a great way to start thinking about judicial behavior. Judge Posner has served for long as both Judge and Chief Judge of the Court of Appeals, Seventh Circuit, at Chicago and
• 2.
  2 teaches law atthe University of Chicago’s Law School. Judge Posner is therefore in a position to draw from both his knowledge of legal theory and the many years of judicial experience that he has picked up at the Court of Appeals. Most of these theories are mainly focused on judges in the appellate courts. So that is a point that the reader should keep in mind. ON JUDICIAL BEHAVIOR What are these nine theories of judicial behavior? What do they seek to explain? Which of these is the most explanatory? While it is not clear which of these theories is the most explanatory, the nine theories describe judicial behavior from the point of view of the following categories: ‘the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological’ and the ‘legalistic.’ Judge Posner puts the ‘legalistic’ in a separate category because that is the doctrine subscribed to by the highest courts in the United States. The preoccupation with stare decisis, for instance, is related to the legalistic model of decision-making in the appellate courts. So it is important to remember that how members of the judiciary describe their decision making is different from how legal academics describe judicial behavior. While most judges think these theories have something interesting to say about the factors that determine judicial decision making, they will describe themselves as doing something that is ‘internal’ to the law itself. That means they spend most of their effort relating previous decisions to present decisions. Judicial behavior is basically an attempt to ensure that the relationship between ‘precedential courts’ and ‘decisional courts’ is made obvious in the judicial decision so that it is
• 3.
  3 not necessary forthe litigants to refer to anything other than the decision itself to figure out the rationale for what the judges are saying. So whether or not the law is ‘autonomous’ in reality, the rhetorical form of the judicial opinion works within a legalistic model that differentiates between a legal solution to a legal problem and a non-legal solution in any given case. So, unlike arbitration, the judiciary works mainly within a legalistic approach to decision making. While judges do incorporate the relevant economic, psychological, and sociological data during oral arguments, they attempt to find a basis for their decisions in the law itself. They also try, if possible, to relate present decisions to previous decisions in the attempt to arrive at a solution in the interests of treating all litigants alike. THE JUDICIAL OFFICE What Judge Posner is trying to do in this essay, and in the book in which this essay appeared, is to fill in the gap within theories of judicial behavior by taking an ‘eclectic’ approach to his subject. This is a pragmatic way of saying that each of these theories is useful but only up to a point. We must remember that they cannot explain all the phenomena involved in studying how judges think. Of course, ‘how judges think’ is not the same as ‘judicial behavior’ in its entirety. Not all their thoughts are translated into action in the course of judicial decision making that can be objectively described using any of these nine approaches. That is why a multi-factorial explanation of judicial behaviour is required. What would the difference be between a book that is titled ‘how judges behave’ compared to ‘how judges think’? That is the aspect of the title which requires more explanation. This is all the more important because judges are allowed to hold office on the assumption that they will be well- behaved. The relevant phrase that describes their tenure is that they hold office ‘during good behavior.’ This is important because judges are usually well-behaved and instances of impeachment are rather few in the history of the law. But, going forward, what such theories will have to grapple with is the analytic difference and the relationship between ‘how judges think’ and ‘how judges behave.’ We must therefore be careful to not use these terms as though they were the same; they are not. Just as there are gaps within theories of judicial behavior there could well be
• 4.
  4 gaps between ‘howjudges think’ and ‘how judges behave’ that they may not be conscious of. That gap is how the unconscious affects both ‘how judges think’ and ‘how judges behave.’ That then is what I think is at stake in determining the forms of thought and behavior that constitute the pre-conditions for interpreting judicial decisions if we want to go beyond the controversies in the case itself to formulating a theory of either how judges think, or how judges behave, or relate these phenomena to each other. ATTITUDINAL THEORIES Let me now describe what Judge Posner has to say about each of these nine theories. The attitudinal theory is an attempt to understand judicial decisions in terms of political preferences. Since judges are appointed by the President, it is likely that they will be of similar political persuasion or, if not, at least try to maximize their areas of agreement. What attitudinal theorists basically do is to deploy an empirical analysis of a judge’s decisions to find out whether it conforms to the political ideology of the President who appointed him to the bench. Another source of evidence is to ascertain when judges retire. Do they retire in a way that makes it possible for the President to appoint another judge in their place who would be like- minded in terms of political ideology? That is often the case and Judge Posner explains the significance of such behaviour from an attitudinal point of view. Judge Posner also describes the strengths and limitations of the attitudinal model before moving on to the sociological model of judicial behaviour. SOCIOLOGICAL THEORIES What the sociological model focuses on is ‘small group dynamics.’ What this means is that the composition of any given bench is what these theorists choose to study. The tools required to do so are drawn from areas like social psychology and rational choice theory. This approach is important for appellate courts because their benches are drawn from panels of three judges from the many who are available to hear a particular case. It may however be less useful if the bench always has the same composition like the Supreme Court in which all the nine members have to attend to every single case unless they happen to recuse themselves for whatever reason. The
• 5.
  5 main idea thatJudge Posner invokes is ‘dissent aversion’ because Judges who are in the majority would prefer a unanimous decision. So a dissenting Judge might be less likely to dissent if his point of view were taken seriously by the majority; that will also enhance the impact of the decision as a whole. Panel composition studies are important because it helps legal experts to understand how liberals and conservatives affect each other’s positions in the attempt to arrive at a common decision. Jury dynamics can also be studied using the panel composition model. PSYCHOLOGICAL THEORIES The main function of the psychological approach is to come to terms with the ‘uncertainty’ that characterizes the legal system. This is also because uncertainty renders conventional approaches to decision making irrelevant in understanding how judges decide. So now we are not only confronted by the problem of ‘how judges think,’ but also ‘how judges behave’ and ‘how judges decide.’ The economic approach to judicial behaviour is about applying the model of ‘rational maximization’ to judges. Judge Posner then analyses the various attributes of the judicial utility function and points out that the strategic and sociological aspects can be subsumed under the utility function. An interesting idea that readers may not have been previously acquainted with is the ‘leisure preference’ for judges and whether that increases the probability that they will encourage the parties to settle out of court. It is also important to remember
• 6.
  6 that a modelof rational calculation will not explain all psychological factors though rational calculation itself is a psychological factor. So there are cognitive and emotional factors that have to be included under the category of the psychological as well. ECONOMIC THEORIES Economic approaches to judicial behaviour also use agency theory where the judge is in the locus of the agent and the problems of agency behaviour are then used to analyse judicial behaviour. Needless to say, this approach does not recognize that judges are supposed to have some autonomy to get their jobs done objectively, but that is less likely to be the case for the agent in agency theory whose job description does not necessarily involve autonomy. Judge Posner invokes the role of precedents as a way of mitigating the incentives to behave like an agent since judges who adhere to precedent are more likely to find that their precedents will be taken seriously by the lower courts. Judicial errors are also likely to be minimized if judges can demonstrate that their decisions emerge from within the common law or case law in a given area. PRAGMATIC THEORIES The main aspect of pragmatic approaches is that they focus on the consequences of judicial decision making rather than on the logical aspects underlying the decisions. In that sense, it is related to areas like utilitarianism and welfare economics. That is because consequential thinking is interested in who will gain or lose in any given decision and judges are under pressure to do what is in the best interests of social welfare when they encounter a gap in the law. So judges with a pragmatist orientation are less likely to worry about the exact wording of a statute or with rules if the consequences will be worse than if they had not arrived at a decision at all. A decision is only a means to an end; and the ends can be invoked either through a model of utilitarianism or social welfare. The law, they believe, does not exist in and for itself. It is only a means to an end. While this is true, the limitation of this model is that it leads to a conflict between what the judges prefer as opposed to what the legislature or the litigants prefer in any given case.
• 7.
  7 PHENOMENOLOGICAL THEORIES The phenomenologicalapproach is more interested in what it feels like to make a judicial decision; a number of judges have written about this aspect of their work. While psychological approaches are interested in the role that the unconscious plays, here the focus is on consciousness. These approaches are loosely derived from the philosophy of consciousness in European philosophy. There is a lot of this in Benjamin Cardozo’s Storr Lectures on the legal process, but a close reading of that text will reveal that he is also interested in the psychological approach. That is why I think what these judges mean by phenomenology is not the same as what European philosophers mean by phenomenology. STRATEGIC & ORGANIZATIONAL THEORIES The strategic dimension relates to the judges’ awareness that he has to take his colleagues along and dissenting too often will make it difficult to find common ground in cases where a bit of compromise will make it possible for his decision or approach to judging to prevail within the Court. It also relates to how a Chief Justice like John Roberts gets the Court to speak with a high level of unanimity by mediating the give-and-take between judges of varying political persuasions by first focusing on what they can all agree on rather than produce any number of concurring opinions and dissents from the bench. The organizational dimensions relate to how the legitimacy of the judiciary will be affected if judges forget the need to co-operate with other organs of government since the legal system is based on the doctrine of the ‘separation of powers.’ The legal system is interdependent. The judges must above all be careful about what they
• 8.
  8 say and dobecause they cannot directly either fund themselves or enforce their decisions. The functioning of the legal system then is based on respect for rule of law and the belief that while the judiciary is powerful there are also in-built constraints to the exercise of that power through the ‘checks-and-balances’ that constitute the American legal system and how it relates to the government. LEGALIST APPROACHES The legalist approach is basically what is described as the ‘rule of law.’ It is difficult for the lay person to tell that it is just another approach because it comes across as the legal ideology in place in a legal system. This model argues that the law is no more than what can be found within written texts like the constitution or statutes. It is what we mean by the rule of law rather than the rule of men. This approach assumes that legal functionaries will come and go but the law goes on forever. In terms of methodology, what legalism argues is that the law supplies the major premise, the case facts constitute the minor premise, and the decision which is arrived at when the major premise is related to the minor premise is the conclusion of the case. The attractiveness of this approach is related to the fact that this seems rather obvious in theory, though legal practitioners know that it is always the rule of law and the rule of men in the world of practice. It is not a matter of indifference to any practicing attorney as to who the judge is in any given case or what the panel composition is in the Court of Appeals. So for those who are not inclined to theorize any further, let us say that it is not possible to succeed in the world of practice if both aspects are not taken seriously. CONCLUSION The law is what it is but it is subject to interpretation since it won’t speak for itself and the course of the law is not subject to exact prediction. Furthermore judges have a lot of discretion; the higher up they are, the greater the amount of discretion they have in terms of which case they will hear or not hear. Discretionary determination involves what the judges will hear, when they will hear, and whether they will hear the case at all; and in the context of the appeals process how many times and at how many levels they will hear the case. That is why the whole question of ‘how judges
• 9.
  9 think,’ ‘how judgesbehave,’ and ‘how judges decide’ are all equally important and we must situate these phenomena within the levels of the judicial hierarchy at which we are studying judicial behaviour. Most of the research in these areas happens at the level of the appellate courts and not at the levels of those judicial functionaries who actually conduct trials. Since most decisions are not appealed or reversed on appeal in any legal system, we must make a serious attempt to understand how judges think, behave, and decide at the lower levels as well. Only then will the clinical dimensions of the interaction between ‘the rule of law’ and the ‘rule of men’ become obvious to practitioners. I have never met a successful lawyer who thought that the judge was less important than the law or that the interaction between the law, the judge, and the legal process can be understood as distinct categories. That is why Judge Posner points out in his conclusion that even while the Supreme Court is a political court, even ‘in its most political domain, that of constitutional law,’ it ‘is, to a degree, legalistic.’ SHIVA KUMAR SRINIVASAN