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Book Review
Order In The Court
Richard A. Posner's ''How Judges Think.''
How do judges think? It’s a question as daunting as Freud's "What does a woman want?" Judge Richard A. Posner, who has been hailed not without reason as the greatest legal mind in America today, tries to answer this vexing question. A judge of the U.S. Court of Appeals for the Seventh Circuit, Posner is distinguished for his pragmatic judicial philosophy and his application of economic cost/benefit models to judicial decision-making.
A prolific and brilliant writer, Posner’s How Judges Think is perhaps his most illuminating work for its profound, and sometimes polemical, insights into the judicial process.
How do judges really decide cases? Is it by declaring the fair meaning of the Constitution or of a statute? Is it a syllogistic process where the facts are the major premise, the law is the minor premise and the conclusion flows mechanically from the formula (defendant robbed a bank; conduct is illegal; therefore defendant is guilty)? Or is there more to it than that, at least in non-routine cases where the interpretation of the law is non-obvious and requires some understanding of what the legislature was driving at?
Posner begins by positing that if legalism (the "fair reading” approach) does not exist, then everything is permitted to the judiciary--even the power to legislate. But, he observes, some legalism does exist. Accordingly, judges in non-obvious contexts such as the interpretation of the Constitution, an 18th century document declaring the values for what must now govern a modern and increasingly digital society, must decide cases based on what he calls an intuition--a subtle indication based on the judge's background, experience, psychology or politics. As Holmes put it "the decision will depend on a judgment or intuition more subtle than any articulate major premise."
So, Posner concludes unsurprisingly that the Supreme Court of the United States is a political court, as most of us knew intuitively anyway. Justices tend to vote largely in conformity with the politics of the presidents who appointed them. Liberal justices appointed by Democratic presidents tend to side with criminal defendants (except in white-collar cases), consumers, small business people, unions, civil rights, environmental and other tort plaintiffs--in short, the forgotten man in society.
Conservative justices appointed by Republican presidents take the opposite view. Do they arrive at their conclusions simply by accepting or rejecting the "fair reading” approach? Posner argues not. He sees legalists like Scalia, just as pragmatists like Breyer, interpreting the Constitution the way they would like it to be when a fair reading of the document or a rigid adherence to precedent is maladaptive to contemporary conditions or drives them to an unwanted result; e.g., Scalia's vote in the recent campaign financing case.
James D. Zirin, a lawyer in New York, is a member of the Council on Foreign Relations and co-host of the cable television program "Digital Age." | 
