Vol. 13 No. 6 (June 2003)

LAW, PRAGMATISM, AND DEMOCRACY by Richard A. Posner. Cambridge, MA: Harvard University Press, 2003. 398pp. Hardcover. $35. ISBN: 0-674-01081-7.

Reviewed by Frank Colucci, Department of Political Science, Northern Illinois University. Email: fcolucci@niu.edu

In LAW, PRAGMATISM AND DEMOCRACY, the astonishingly prolific federal judge Richard Posner again seeks to justify legal pragmatism as a description of and guide to judicial decision making.  While his presentation is often tangential, Posner’s central argument fundamentally challenges the academic debate about judicial review.

Posner has long advocated pragmatism as “the secret story of our courts as of our political system in general” (p. 355).  In this book he seeks to elaborate and defend this conception.  He describes the everyday pragmatist as forward-looking, anti-traditionalist and anti-essentialist—someone who rejects the “grand theorizing” of philosophers, political and moral theorists, and legal formalists.  The everyday pragmatist politician and judge – there is little difference between the two – will “base actions on facts and consequences rather than on conceptualisms, generalities, pieties and slogans” (p. 3). 

Consistent with his everyday persona, Posner dismisses most academic study of democracy and judicial review.  He rejects academic ideals of deliberative or participatory democracy as theories that aim at “modeling democracy on a faculty workshop” (p. 135).  In practice, bringing political debate out into the open leads not to consensus but to fundamental disagreements that have the potential to disrupt society. Instead, Posner advocates an elitist concept of representative democracy rooted in the writings of Joseph Schumpeter.  Democracy as “government subject to electoral checks” (p. 164) is not only a superior description of the American constitutional and political system; it is also a normative goal that succeeds in “reducing the amount and intensity of citizen involvement in politics, freeing up time for other potentially more rewarding and beneficial activities and reducing the temperature of political debate and so the level of social conflict, thus promoting political stability” (p. 175).   Posner also considers theoretical efforts to reconcile judicial review and democracy “quixotic.” Attacking originalism, he argues that “theories of judicial restraint are typically masks for judicial activists to don” (p. 211).  He also criticizes moral readings of the Constitution, like Ronald Dworkin’s, because “the problem with words like ‘fairness’ and ‘equality’ is that they have no definite meaning” (p. 66). 

Posner argues that elitist democracy—and its space for legal pragmatism—is consistent with the view of the courts taken by the American people.  The public does not read judicial opinions for their interpretive fidelity, yet “they care passionately about results” (p. 96). Finding that most decisions are complied with “even when the textual basis for a decision is exceedingly tenuous,” Posner concludes that judicial legitimacy depends not on theoretical foundations “but from the brute fact that the American people accept the validity of the legal norm promulgated by this government” (pp. 272, 262).

Posner’s legal pragmatism recognizes fewer theoretical constraints on judicial power than does conventional constitutional theory. He admits that “ideology, in the sense of moral and political values that transcend the merely personal or partisan, is not an illegitimate, but an inescapable, feature of legal judgment” (p. 353), and he concedes pragmatic adjudication “will inevitably be based to a disquieting extent on hunches and subjective preferences rather than on hard evidence” (p. 126).   The discretion of pragmatist judges is limited not by fidelity to interpretive theory or traditional legal constraints, but by “psychological, career and institutional factors.”   Pragmatists accord “due respect for rule of law virtues;” however, this respect is practical, not principled, and sometimes outweighed when social change is necessary (p. 61).  Posner acknowledges the practical necessity “for deference to democratic preferences and modesty about the power of legal reasoning to put judges in touch with the truth.” Such constraints “limit the discretion even of the perfectly self-aware judge.”  But these constraints are practical and political, not theoretical.  In the end, “there isn’t much more to say to the would-be pragmatist judge than make the most reasonable decision you can, all things considered” (p. 64). 

The pragmatist judge, as Posner portrays him, is a shrewd realist.  He admits “different judges, each with his own idea of the community’s needs and interests, will weigh consequences differently” (p. 71).  Citing the example of Chief Justice John Marshall, Posner states that pragmatism does not abide by conventional academic standards of excellence. “The test of a great judicial opinion is not its conformity to the tenets of legal formalism,” he writes. “It is how good a fit it makes with its social context” (p. 93).   Posner intriguingly suggests that it might be preferable “for our judges to be closet pragmatists, indeed unconscious pragmatists” (p. 95).   He initially rejects this possibility out of a belief that judges will act more responsibly when they are candid about their pragmatism. But he admits the pragmatist judge may use formalist rhetoric “to sugarcoat his decisions,” as “choice of vocabulary is itself a pragmatic decision” (p. 55).

Posner’s applications of legal pragmatism are equally provocative. He considers the Supreme Court’s opinion in CLINTON v. JONES “notably unpragmatic.”  Clinton should have been granted official immunity from the civil suit because “a president’s extramarital sex life is a politically explosive subject.” To Posner, “recognition of this fact should have been at the center of the Court’s consideration, even though it was a fact without conventional legal significance” (pp. 318-319).  

Posner also assesses the potential effect of the war on terrorism on civil liberties.  The meaning of constitutional protections such as freedom from unreasonable search and seizure and free speech, he argues, “is not absolute but is and should be relative to changes in circumstances,” including “not just changed perceptions of public safety and moral health but also changes in value perceptions” (p. 366).  Posner speculates that had TEXAS v. JOHNSON first come to the Court after September 11, 2001, it would have been decided differently (p. 367).  He also defends the decision in KOREMATSU v. U.S.  “In hindsight we know that interning the Japanese-American residents of the West Coast did not shorten World War II,” he admits.  “But was this known at the time?  If not, should not the government have erred on the side of caution, as it did?” (p. 299).

A chapter-length discussion of BUSH v. GORE provides the centerpiece of Posner’s argument for everyday legal pragmatism.  As he has elaborated elsewhere at greater length, Posner finds the Court’s action “defensible, if at all…as a pragmatic solution to a looming national crisis” (p. 322).  He sketches a worst-case scenario of Congressional deadlock over Florida’s electoral votes and the continuing instability of presidential succession, and he considers the recount ordered by the Florida Supreme Court “farcical” for many of the reasons given by the Supreme Court’s per curiam opinion.  Yet to Posner the equal protection rationale and the prevention of a further recount ordered by the majority “seem unprincipled” (pp. 341-342). 

Posner finds the Article II foundation of Rehnquist’s concurring opinion “far stronger.”  But his reasoning is merely strategic: “such an opinion would have deprived critics of the Court of much of their ammunition.”  Opponents could not have accused the majority Justices—especially Scalia--“of betraying their settled convictions” or of “an affront to state rights.”  In addition “there would have been no awkwardness in the remedy of stopping the recount” because no recount should ever have been ordered.  An “esoteric” Article II rationale would have been “unlikely to generate many consequences beyond the specific case” and “would not have provided a handle for criticisms that the general public could understand” (pp. 344, 346-347).  

Nevertheless, despite “a notable lack of judicial finesse, arousing the keepers of the legal flame,” Posner judges the Court’s intervention in the presidential election a success.  The public never read the opinion, but polling indicated widespread gratitude to the Court for settling the crisis. For Posner, the fact the Court’s action “has bothered few real people” provides “one more bit of confirming empirical evidence” that the American people—unlike academic theorists—are essentially pragmatic and expect the same from their courts (p. 355-356).  

For all his apparent hostility to theory, in his brief conclusion Posner admits his ultimate reliance on theory, particularly that of John Stuart Mill.  Everyday pragmatism, Posner writes, encompasses not merely legal pragmatism and pragmatic democracy, but also liberty—“the issue of the optimal scope of government.”  To Posner, however, Mill’s ideal of liberty differs from “abstract” contemporary theory: it is “essentially pragmatic,” “independent of moral theory,” and “grounded in sensible practical observations” about human nature and scientific progress (p. 384).

Posner’s wide-ranging and engaging presentation will leave some readers exhilarated and others frustrated.  He attacks several familiar targets: the irrelevance of philosophers and political theorists, the false claims of expertise by lawyers, the partisanship of law professors. He draws rhetorical support from sources as disparate as Homer, schools of painting, crowd psychology and bonobo culture; and he appropriates exotic and unpopular allies like Schumpeter, Hans Kelsen, Charles Darwin, Machiavelli and the ancient Greek sophists. Political scientists, though, will note that Posner never mentions Segal and Spaeth’s attitudinal model (1993, 2002) despite its apparent affinities with legal pragmatism.

Although Posner decries lawyer’s hubris, his wide sweep makes it tempting for the reader to dismiss LAW, PRAGMATISM, AND DEMOCRACY as itself an example of judicial hubris.   But to do so would be a mistake.  As Posner often states, the fact an argument has unsavory or self-interested origins does not mean it should be rejected.  To both longtime advocates of judicial restraint and more recent converts, the most troubling aspect of legal pragmatism is the possibility that practicing judges—whatever their rhetoric—see no realistic alternative.

REFERENCES:

Dworkin, Ronald. 1996.  FREEDOM’S LAW. Cambridge: Harvard University Press.

Mill, John Stuart.  1859. ON LIBERTY.  London: Longmans, Green, Reader, Dyer.

Schumpeter, Joseph. 1943. CAPITALISM, SOCIALISM, AND DEMOCRACY.

London: George Allen and Unwin.

Segal, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.

 

CASE REFERENCES:

BUSH v. GORE 531 U.S. 98 (2000).

CLINTON v. JONES 520 U.S. 681 (1997).

TEXAS v. JOHNSON 497 U.S. 397 (1989).

KOREMATSU v. U.S. 323 U.S. 214 (1944).

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Copyright 2003 by the author, Frank Colucci.