Another note on Posner's How Judges Think:
Posner demonstrates persuasively that pragmatism, his favored judicial philosophy, can offer a refreshing alternative to some partisan contests over the meaning of the constitution. Thus he says of a Supreme Court decision permitting school vouchers -- which might be good or bad -- that the potential benefeits of vouchers "could not be realized if voucher systems were declared unconstitutional. Such a declaration would strangle a worthwhile social experiment in its cradle." (312) He acknowledges at once that "if vouchers spread like wildfire, the Court might have difficulty putting out the flames" -- a pragmatic reason not to permit the experiment in the first place -- but still his point that pragmatism favors experimentation makes sense. It's true that every decision is an experiment (for example, we experiment with having vouchers if they're permitted, and we experiment with not having them if they're forbidden) -- but sometimes, as with vouchers, it's clear enough which alternative we have fewer data on, and that's the alternative that the pragmatic-experimentation rationale would favor.
Posner is also right, though the point can be traced back to Bickel (whom Posner criticizes), that there are some doctrinal paths that will just stir up trouble, and should be avoided for that reason. Posner approves a decision permitting a Ten Commandments monument on the Texas state capitol grounds because the result of prohibiting this monument might have been "an ACLU-led campaign to purge the entire public space of the United States of displays of the Ten Commandments, ubiquitous as they are. It is hard to imagine not only a more divisive but also a more doctrinaire and even absurd project, faintly echoing as it would the campaigns of Mexico, Republic Spain, and the Soviet Union in the 1930s against the churches of those countires, not to mention the destruction of religious images by the Iconoclasts of eighth-century Byzantium." (321-22) My sympathies are much more with the ACLU than Posner's, but I think he is right that this is a line of historical precedents one should avoid joining.
The trouble is that the lessons of pragmatism often, perhaps usually, are more obscure than these instances of relative clarity might suggest. Consider Posner's analysis of Kelo, the Supreme Court's decision affirming state power to use eminent domain to seize privately owned land and transfer it to another private owner for purposes of redeveloping an area. Posner says that eminent domain is essentially an arbitrary tax, in which the public takes property for its market value but doesn't pay for -- in effect, taxes at a rate of 100% -- the additional "subjective" value that the property had for its owner. (My house is worth X on the market; but I like living in my particular house, so it's worth X + Y to me -- yet eminent domain pays me only X when it takes the house.)
"The only justification for this form of taxation," he writes, "is the existence of holdout problems," which arise when an individual property owner can hold out for a price far beyond the normal market value of the property because the would-be acquirer has to get that particular piece of property, for instance to assemble a large piece of land for a major construction project. (315) Posner comments that the Kelo court "mentions the holdout issue only in passing" (316).
But, Posner says, "[p]aradoxically, the strong adverse public and legislative reactions to the Kelo decision are evidence of its pragmatic soundness" -- because the effect of the decision was to return the issue of eminent domain to the political process, which has proved quite able to address it. (319) Posner has more to say about the pragmatics of Kelo, but this last point would seem to mean that even if a holdout analysis had been done and had counseled against permitting eminent domain in this case, a decision to allow eminent domain could still, pragmatically, have been the right one. The pragmatics of economics and the pragmatics of democratic process may point in opposite directions, and I'm not sure what pragmatic calculus could choose between them.
Moreover, in many situations it must be unclear what a pragmatic analysis really calls for. Posner himself has analyzed a host of issues through the framework of economic rationality, but that framework has come under sharp attack with the rise of study of the shape and limits of human cognition (a line of study Posner has by no means resisted). More concretely, consider his critique of Justice Breyer's rationale for approving limits on campaign contributions under the First Amendment. Posner writes that Breyer's "fear is that without limitations on individual campaign contributions, candidates will confine their fund-raising to the handful of fat cats, and the ordinary people will become alienated from the political process because they will assume that policy is shaped by the interests of the rich and that the people's voice is not heard." (331) In the next paragraph he responds: "No evidence for this implausible speculation is offered." He goes on to offer some arguments, though not evidence, against it.
To my mind, Breyer's speculation doesn't seem implausible at all, but that's not my main point here. Rather, my concern is that demonstrating that Breyer is either right or wrong seems likely to be far beyond the capacities of our current social science. Are ordinary people "alienated from the political process"? Will they become more alienated if rich people's political spending becomes even greater than it already is? Even if we succeed somehow in measuring alienation, how will we tell which of ten thousand political developments that preceded that increase contributed, to what degree, to its occurring? In short, the consideration Breyer has raised seems to me to be one a pragmatist should consider -- but I don't see how it can be measured.
I doubt that Judge Posner would take issue with the points I've just made about the indeterminacy of pragmatist analysis. He writes a little later in the book that his "impression is that politically like-minded judges usually vote the same way despite their different judicial philosophies.... [J]udicial philosophies" -- such as pragmatism or originalism -- "have little causal efficacy. They do not weaken the force of political preferences. They supply not 'actionable' reasons but rationalizations for actions taken on other grounds." (346) If the calculations pragmatism calls for are really infeasible, then it does follow that there will be plenty of room within a pragmatist analysis for political predispositions to creep in.
And yet Posner himself seems of two minds on this. A few pages earlier he writes that "originalism and its sibling, textualism, like pragmatism ... is [sic] not intrinsically political, although its motivation I take to be political, in the sense that the outcomes it is likely to produce will on the whole conform to the political preferences of the theorist and that otherwise he would not have adopted it." (342) This observation is consistent with Posner's view that judicial philosophies "do not weaken the force of political preferences." But it may be inconsistent with his impression that there actually exist judges with similar politics but different philosophies -- the judges who Posner believes cast their votes in concrete cases based on their politics rather than their philosophies. Some such judges undoubtedly do exist, and Posner names some examples; but on the argument I'm making, they should not be common, because if judges choose the philosophies that fit their politics, then the fact that judges have chosen different philosophies is a sign that they have different politics.
I am sure that a textualist is not automatically a political conservative; what politics textualism -- or any other interpretative theory -- fits with will depend on the nature of the issues the judge and his or her country face. In South Africa under apartheid, for instance, a good deal of anti-apartheid mileage could potentially be gotten out of an indifference to legislative history (which might have revealed the oppressive intentions behind particular pieces of legislation in a way that could not be ignored). Here in the United States today, a similar indifference to legislative history may best serve conservative politics.
But if judicial philosophies are driven by politics, then we are unlikely actually to find many of the judges of similar politics but different philosophies whose voting behavior Posner thinks about. And because that is so, it may also be difficult to test empirically whether judicial philosophy is driven by politics, or (conceivably) vice versa, or (more likely) whether some deeper set of convictions or personal characteristics jointly drive them both.