by Eric Segall
I was recently asked to guest teach a class at Michigan State Law School on the topic of the appropriate judicial role and whether the Supreme Court is or is not a real court (I argue in my book the Court is not a real court). I was quite flattered and happy to do it but also thought the students might like to hear about this topic from a real judge so I asked my friend and sometimes writing partner Judge Posner if he would meet with the class as well. He graciously agreed and through the marvels of modern technology (well almost, as there were a few glitches on my end) we had a Skype with people in three different states.
There was a general consensus in the room among Judge Posner, myself, and several faculty members (Mae Kuykendall, Jim Chen and David Blankfein-Tabachnick) that the legal realist account of how judges decide cases was mostly accurate. We all agreed that legal doctrine rarely drives results in hard cases and that judges are, and should be, aware of the practical consequences of their decisions. We also agreed that stare decisis, while having some effect on how lower court judges make their decisions, plays virtually no role in generating decisions in the Supreme Court.
Agreement broke down, however, when we discussed what level of candor we should expect from judges in general and the Supreme Court in particular. I argued that it is inappropriate for the Supreme Court to hide behind standard and misleading methods of constitutional interpretation such as precedent, text, and historical analysis when we all know (per our acceptance of the realist critique) that decisions are generated more by what Judge Posner calls “priors” and what I call values writ large, than by legal doctrine. This problem is more pronounced at the Supreme Court than other courts because the Justices choose the hardest cases, there is the most at stake, and there is no effective review of their decisions.
Judge Posner argued strenuously that I was holding judges in general and the Supreme Court in particular to a standard of candor that we do not place on members of Congress, the President, and other public officials. Judge Posner stated that we know politicians are not candid about the reasons motivating their political choices and we should not be surprised that judges do the same. Judge Posner did distinguish between affirmatively lying, which judges should not do, and not disclosing the true bases of decisions, which he felt was inevitable.
I argued that federal judges are governmental officials appointed for life who exercise coercive power over us and the rule of law requires they tell the litigants and the public the true reasons for their decisions (as best they can). For example, I have argued that Justices Scalia and Thomas quite clearly do not follow an originalist methodology across huge portions of constitutional law and they should stop pretending that they do. Judge Posner suggested that it is quite possible they think originalism drives their decisions and their failure to own up to the priors that actually generate their decisions is based more on a lack of self-reflection than bad faith. I quibbled that since just about everyone outside the Court agrees doctrine does not really drive decisions, that lack of self-reflection on the part of the Justices was a bit alarming. Professor Chen, who earlier in the discussion made a similar point, was sympathetic to this suggestion.
During the course of the discussion, Judge Posner identified Justices Holmes, Cardozo and Jackson as three of his favorite Justices and Learned Hand as one of his favorite judges. He also lamented that most current Justices do not have any significant political experience and we would all be better off if there were a few ex-governors or ex-senators on the bench. I think we all agreed with that complaint.
Towards the end of the class, I asked what people thought would happen if one of the Justices gave a public talk admitting that the Court decides cases as Judge Posner described he decides cases. Get a sense of the fair and just result, conduct relevant research, make sure the consequences are not terrible, and then take a peak to make sure prior legal doctrine does not forbid the decision (in the Court’s case, as opposed to lower court judges, the last step can basically be skipped). In other words, what would happen if the Justices admitted that they functionally make all-things-considered decisions. Professor Kuykendall responded that she thought the American people would welcome such candor (especially given the low esteem surrounding the legal profession) and most people would be pleased the Court was finally admitting what the rest of the world already suspects.
I hope, but I am not optimistic, that one day we will find out if her prediction is correct.