International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2014 Issue

In Review:
Recent Publications on International and Comparative Law and About Judges and Courts


How Judges Think
By Richard A. Posner. Harvard University Press. 2008

How Judges Think

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

The title of this regular feature contains the word “recent” probably indicating to the potential reader that the book to be reviewed has been published the same year as the article, or even one year earlier. This particular review violates that assumption, by six years, really not that recent by some interpretations. But the word “recent” is not that specific as a term. For example, “recent” history might mean in the very recent past, such as  six weeks, or six months or a year, or it could refer to an event or span of time or period more distant, such as even a decade. Six years qualifies it, I believe, as a recent book in the broadest sense.  Moreover, the value of the book is in some sense timeless, because its messages are not time specific and are not limited to the years 2013 or 2014. How Jusdges Think thus qualifies as a recent book.

It is difficult to write about what judges do. Associate Justice of the United States Supreme Court Felix Frankfurter, in a 1954 address at a meeting of the American Philosophical Association, made an observation about this problem:

[T]he most illuminating light on painting has been furnished by painters, and the deepest revelations on the writing of poetry have come from poets. It is not so with the business of judging. The power of searching analysis of what it is that they are doing seems rarely to be possessed by judges, either because they are lacking in the art of critical exposition or because they are inhibited in practicing it. The fact is that pitiful little of significance has been contributed by judges regarding the nature of their endeavor. (quoted in The Judges by Martin Mayer (2006) at pp. 7-8)

Judge Posner’s book seeks to remedy this situation somewhat, as he notes in the text (see quote at the end of this review).

In the Winter 2014 issue of the International Judicial Monitor, another book by Judge Richard Poser, the author of the book under review here, titled Reflections on Judging, was reviewed in this space, and it was, without any danger of dispute, a “recent” publication, as it was published during this year. The reader, at least the judge-reader, was encouraged to read the book, as it was one of major importance to the judiciary and the courts. The subject of this book, How Judges Think, is no less so.

The later work of Judge Posner, Reflections on Judging (2014), focused primarily on some of the ways in which courts function, and what is wrong with some of those ways, as well as how some of their deficiencies might be corrected. The earlier work, How Judges Think (2008), which is the subject of this review, is more analytical and less correctional, both in substance and in tone. Its purpose is “understanding judicial behavior.”  Two main themes of this volume are what the author calls “judicial pragmatism,” a subject he has addressed in other books, and the political nature of judicial decision making. In his “Introduction” he describes “most of what this book is about,” including the exercise by judges of “a great deal of discretion,” and an “effort to develop a positive decision –theoretic account of judicial behavior in what I am calling the open area – the area in which the judge is a legislator.” He writes:

[T]he reasons for the legislative character of much of American judging lie so keep in our political and legal systems and our culture that no feasible reforms could alter it, and furthermore that the character of  our legal system is not such a terrible thing. The falsest of false dawns is the belief that our system can be placed on the path to reform by a judicial commitment to legalism – to conceiving the judicial role as exhausted in applying rules laid down by statutes and constitutions or in using analytic methods to confine their attention to orthodox legal materials and have no truck with policy.

I hope these arguments persuade, or at least that the book contributes to a more exact and comprehensive understanding of how judges behave, why they behave as they do, what the likely consequences of such behavior are, and what intellectual tools are best suited to analysis.

The following is a synopsis, chapter by chapter of Judge Posner’s analysis.

Chapter One – Nine Theories of Judicial Behavior – The theories are “the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological, and, of course, what I am calling the legalist theory.”  He comments that all of these theories have merit, but “all are overstated or incomplete.” What is missing “is a cogent, unified, realistic and appropriately eclectic account of how judges actually arrive at their decisions in non-routine cases, in short, a positive decision theory of judging.” That is the “gap this book endeavors to fill…” This analytical approach is reminiscent of the technique of Associate Justice of the U.S. Supreme Court Benjamin Nathan Cardozo’s The Nature of the Judicial Process.

Chapter Two –The Judge as a Labor Market Participant – Judge Posner posits that society is made up of buyers and sellers, and judges seem to belong to the latter group. Perhaps some judges might be offended by being including in such an economic classification system. What follows is an analysis of what motivates persons to become judges including finally being relieved of participating in the eternal hunt for clients; power, status and prestige; job satisfaction; and in some instances a leisurely existence. Judge Posner also lists the factors that sometime creep into judicial thought that does not always reflect well on the judiciary: conscious falsification; prior influences “shaped by experience, temperament, ideology, or other personal non-legalist factors;” cognitive illusions “shaped  by irrelevant reactions;” and “twisting the facts to minimize the liklihood of being reversed.

Chapter Three – The Judge as Occasional Legislator – “Appellate judges are occasional legislators” writes Judge Posner, stating for the public what many politicians, especially those in the Congress of the United States, and running for positions in that legislative body, openly and loudly condemn. Judge Posner has taken his cue from a statement made by the Great Chief Justice, John Marshall, who famously wrote in the Supreme Court case of Marbury vs. Madison (1803) that “It is emphatically the duty of the Judicial Department to say what the law is.” The theme as stated in the title to the chapter heading is well developed in the discussion that follows.

Chapter Four – The Mind of the Legislating Judge – The essence of the argument here is that the judicial mind is influenced by politics; by ideology; by experience and training; by race, religion and gender; and by geographical area of origin. As in Chapter Three, these arguments are well developed.


Chapter Five – The Judicial Environment: External Constraints on Judging – Some of the constraints to which Judge Posner refers in the chapter title are: concern for reputation, judicial agency costs, users seeking alternative dispute resolution mechanisms, appointment and promotion, campaign contributions (in those states where judges are elected), fear of being reversed, backlog pressure, pressure for cooperative behavior, desire to influence the development of the law, judicial evaluation, and ethical and professional norms.

Chapter Six – Altering the Environment: Tenure and Salary – “We can learn more about judicial behavior by considering the likely effects on it of two proposals that would alter the federal judicial environment: imposing term limits on federal judges, which would require a constitutional amendment, and increasing their salaries substantially, which would not.”

Chapter Seven – Judicial Method: Internal Constraints on Judging – “[B]ecause an American judge, especially at the appellate level, is an occasional legislator, yet with no constituency to answer to , his judging is likely to be influenced by temperament, emotion, experience, personal background, and ideology (influenced in turn by temperament and experience), as well by an “objective” understanding of what would be the “best” legislative policy to adopt in order to resolve the issue in the case.

Chapter Eight – Judges Are Not Law Professors – Judge Posner comments that academic criticism, better to be called “critique,” is a potential “powerful constraint because judges care about their reputation, care about being (and not merely being thought to be) ‘good’ judges, respect the intellect and specialized knowledge of first-rate academic lawyers, and by virtue of their very independence are open to a wide array of influences, including those exerted by criticism …” He also observes that “academic critique of judges and judging has little impact these days on judicial behavior. This is not to say that academic scholarship has little impact on the law, including the law made by judges in their legislative role. But my interest in this book is not in how law professors create knowledge that finds its way into judicial opinions and hence into the law; it is in the law professor’s role as an evaluator of judicial performance whom judges take seriously.”

Chapter Nine – Is Pragmatic Adjudication Inescapable? – Judge Posner in this chapter enters the field of philosophy in looking at the meaning of pragmatism in the work of judging by considering the work of American philosophers who advocated a well developed philosophy of pragmatism – John Dewey, William James and Charles Sanders Peirce. They “advocated a radical empiricism in which propositions would be evaluated by their observable consequences rather than by their logical antecedents – advocated, in other words, an extension of the scientific method into all areas of inquiry.” The judge looked at the application of that school of philosophy on law and judging and observed: “The core of legal pragmatism is pragmatic adjudication, and its core is heightened judicial concern for consequences and thus a disposition to base policy judgments on them rather than on conceptualisms and generalities.”

Chapter Ten – The Supreme Court is a Political Court – This chapter has and probably will continue to cause some raised eyebrows. The argument is summed  up in the first sentences of the chapter: “ I have suggested that American judges are predestined to be pragmatists. But a more illuminating description of the justices of the U.S. Supreme Court, particularly when they are deciding issues of constitutional law, is that they are political judges, as I shall argue with reference primarily to cases decided in the Court’s 2004 term, the last term before the Court changed direction as a result of the replacement of Rehnquist and O’Connor by Roberts and Alito. But political judges are pragmatists if what is driving them is…the political consequences of their decisions.”

Chapter Eleven – Comprehensive Constitutional Theories –Judge Posner takes as his introduction to this very technical subject and “the inadequacies of the orthodox maerials,” references to a recent book by Supreme Court Associate Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution. He comments about this book and its author:

A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that is done well but that it is done at all. The dog’s walking is inhibited by anatomical limitations, the Justice’s writing by political ones.

Chapter Twelve – Judicial Cosmopolitanism – One of the more important chapters in the book, in fact the most important chapter in the opinion of this reviewer, is the the last chapter. This is an important chapter because it bears heavily on the question of “whether, or more precisely, in what circumstances - for what purpose, to what end - the Supreme Court [or even lower appellate courts] should cite a decision by an international and or other foreign court….The debate is over the as yet relatively few cases in which a foreign decision is cited for its precedential effect by judges (more particularly Supreme Court Justices) searching for a global  consensus on a issue of U.S. constitutional law. That search is the latest hopeless effort to ground controversial Supreme Court judgments in something more objective than the Justices’ political preferences.”

Judge Posner comments on the conundrum relating to the citing of foreign law:

I am not suggesting that our judges should be provincial and ignore what people in other nations think and do.   Just as our states are laboratories for social experiments from which other states and the federal government can learn, foreign nations are laboratories from whose legal experiments we can learn. The problem is not from learning from abroad; it is treating foreign judicial decisions as authority in U.S. cases, as if the world were a single legal community.

Since the world is not in fact a “single legal community” Judge Posner argues that foreign law, meaning international law and the law of other countries, cannot be used as precedent, meaning controlling precedent in U.S. constitutional cases. This approach certainly helps to clarify the issues in the debate, and helps resolve it.

Judge Posner ends with a Conclusion that summarizes the main points of his dissertation, most of which are presented above. More fitting to conclude this review is a quotation from the "Introduction" that appears on the back of the book jacket, which signals very well why it is important, picking up on an issue described at the beginning of this review:

I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges – and even by some judges. This unrealism if due to a variety of things, including the different perspectives of the different branches of the legal profession – including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule bound it is), and often to believe it, though it does not describe their actual practices…

This book parts the curtain a bit.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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