This series addresses the high crimes and misdemeanors committed by the Roberts Majority of SCOTUS. Reforming the Court must begin with impeachment of these six. They will strike down any law restricting their power. This should be a campaign issue for every Democrat.
Introduction
Previous posts in this series help us to see the deeper problem with the six Republicans on the Supreme Court: their theory of the role of judges in our democracy. They all believe that they know the truth of the Constitution, and that it is their duty to shove that Truth down our throats.
This is a false view of the role of judges. In this post I discuss the theory of judging espoused by Richard Posner, who served for many years as a judge on the 7th Circuit, and as a lecturer at the University of Chicago Law School.
Posner’s theory of pragmatic adjudication vs. judicial positivism
The text for this post is a 1996 article Posner published in the Cardozo Law Review, Pragmatic Adjudication. The article begins with a discussion of the term “pragmatic”. Posner distinguishes it from Pragmatism, a philosophical theory developed by Americans. Posner is interested in a practical kind of pragmatism, more in line with the common usage of the term.
Posner uses this working definition of pragmatic adjudication:
… a pragmatist judge always tries to do the best he can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past….
Posner says his critics accuse him of a form of relativism which Alasdair MacIntyre would call emotivism. That is equivalent to saying that he has no firm principles. Posner flatly and accurately disagrees. He offers a contrasting view, that of the judicial positivist, which he describes as:
.. a judge who believes not only that the positivist account of
law is descriptively accurate — that the meaning of law is exhausted
in positive law — but also that the positivist account should guide
judicial decision-making, in the strong sense that no right should be
recognized or duty imposed that does not have its source in positive law.
Positive law is the constitution, statutes, rules and established norms of a society. In deciding how to rule on a close case, a judicial positivist would consider the laws, rules, and precedents applicable to the case, and choose the judgment that aligned the current case with the prior decisions of other officials.
The judicial pragmatist, in contrast, would carefully consider those materials as sources of knowledge, and even as wisdom, helpful in deciding the current case, but would not feel a duty to align the decision in the current case with them if that would produce a bad result for the future. This, I think, is one aspect of the difference:
There is often a trade-off between rendering substantive justice in the case under consideration and maintaining the law’s certainty and predictability.
The judicial positivist does not recognize this critical difference. Because he does see this difference, a judicial pragmatist would also consider “… sources that bear directly on the wisdom of the rule that he is being asked to adopt or modify” I think Posner would insist that if this leads to a duty to explain why those prior rules do not produce a good outcome in the current case.
Let me try an example. Imagine you’re a trial lawyer in Dobbs v. Jackson Women’s Health Organization. Recall that the issue that went to trial was a 15 week abortion ban. If you were before a judicial positivist, as a lawyer for the state perhaps you would evidence of some kind of sentience or life of the fetus on the grounds that protecting life is a crucial aspect of Roe v. Wade. You would argue that the state should be allowed to determine the date by which the interest of the state is greater than the interest of the woman and her family. As a lawyer for the Clinic, you’d pound on the precedent, and probably point to the testimony of the Trump-appoiontees that it was a really solid precedent.
But as a lawyer for the clinic, if you were before a judicial pragmatist, you’d focus on evidence of the impact on the lives of women and their families arising from the right to abortion set out in Roe. You might put on evidence of the many ways things can go wrong in pregnancy and the need to allow women and their medical care professionals to cope with them. These facts wouldn’t as important to a judicial positivist, who would focus on law and rules and would hesitate to rule for the state in light of Roe.
In both cases it is possible to produce a respectable decision, which Posner acknowledges..
Background
At the end of this post discussing Alito’s bad judging there’s additional background. For background on the rise of judicial domination of democracy, see this book review by Pema Levy in Mother Jones.
Pragmatism and law
a) The last sections of the Posner article try to deal with the complications of judicial pragmatism. It’s clear from this section that Posner is no wild-eyed revolutionary or judicial tyrant. Instead he shows a real respect for the fundamental problem human beings face: there are no rules written in the heavens. We can only try to do our best to act in a principled manner and hope that others will correct our errors.
b) Posner doesn’t think he qualifies as a philosophical pragmatist. But he certainly accepts a foundational idea of Pragmatism: its view of truth. Pragmatists think that when we say a statement is true, what we mean is that as of now, this is the best understanding we as a group can reach. I discuss this here and here
The Roberts Majority
The Roberts Majority aren’t judicial pragmatists. They also aren’t judicial positivists. They claim to be originalists or textualists but they don’t do that either, though I leave that discussion to experts. They don’t care about precedent, or what the majority of their predecessors thought. They don’t care about the intent of Congress or state legislatures. They don’t care about the expertise of administrative agencies. They don’t care about historical norms, either. For example, they believe that some people are above the law, and that the president must be allowed to insert politics into prosecutorial decisions.
To put this bluntly, consider Alito’s opinion in Dobbs. The facts don’t matter. The impact of pregnancy on women and their families is irrelevant. It doesn’t matter whether the lower courts were judicial positivists or judicial pragmatists. The only thing that matters is that Alito doesn’t like Roe v. Wade. It caused damage, he says, with no reference to the record. He cites a bunch of cases from old dead people who lived in totally different societies, claiming that those cases are decisive. Then he murders the right of women to control their own health decisions,
The Roberts Majority believes their job is to enforce their view of the Constitution because it’s the only true understanding. It doesn’t matter that the Reconstruction Amendments empower Congress to remedy the disparate treatment of groups of people. After Callais, it’s impossible to imagine a statute on voting rights they wouldn’t throw out. After Citizens United, it’s impossible to imagine a law on campaign finance they wouldn’t throw out.
The Roberts Majority assert that there is precisely one meaning to the Constitution, to any law, to any word, and that they know precisely what it is. They run the country and you don’t get to complain. There is only one remedy.
Impeach all six.
The Slow Death of Neoliberalism: Part 4A The Nature of the Person
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