Posner’s Tyranny of Expertise

Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way. It shows Posner, an appellate judge on the Seventh Circuit and one of the leading figures in the economic analysis of law, at his incisive best—scorching defective constitutional theories and judges who apply them inconsistently—and his own approach, legal realism, at its problematic worst. ­

Posner’s concern in this work is the growing complexity facing the federal judiciary, which manifests internally in bureaucratic sprawl—judges must now, for example, manage increasingly large staffs—and externally in the intricacy of systemic interactions, especially technological ones, involved in cases. Rather than wrestling with the beast of complexity, judges try to tame it with simplistic constitutional theory, and therein, Posner believes, lies their mistake.

Blending the personal and professional with the theoretical—the book contains a lengthy and engaging autobiographical essay, as well as practical counsel on such topics as how judges should manage clerks, how attorneys should persuade judges and how both should write—Posner mounts a sustained attack on legal “formalism,” the attempt to reduce the judicial craft to a process of clinical logical deduction. Legal “realism,” by contrast, embraces in the open what Posner contends formalist judges do behind the curtain:

“The core of a defensible legal realism,” he writes, “is the idea that in many cases, and those the most important, the judge will have to settle for a reasonable, a sensible, result, rather than being able to come up with a result that is demonstrably, irrefutably, ‘logically’ correct. Law is not logic but experience, as Holmes famously put it.” (6)


Richard A. Posner Judge, United States Seventh Circuit Court of Appeals Senior Lecturer, University of Chicago Law School.

Often, Posner acknowledges, cases can be resolved by appeal to formalism: the logical application of law to circumstance. Indeed, pragmatism, believing the law ought to be settled and predictable, accepts formalism as a “special case.” “But it is not always possible.” The reasons for this are significant. They include “the absence of disciplined legislative processes,” which leave laws ambiguous; “the difficulty of amending the Constitution,” which compels courts to “”engage in loose interpretation of it”; and “the breadth of explicitly judge-made law,” by which Posner means common law, including of the federal variety, “which federal judges make up.” (107)

In these cases where formalism fails, he argues, an active realism is the only option—and it is not, apparently, a reluctant one. “The cases in which judges play a legislative role yield the decisions that shape the law. They are not only the most important and most interesting cases but also the most challenging ones.” (108) Whereas the formalist judge cannot hope to apply formalism consistently, the realist judge embraces formalism where it works but also rejects “judicial philosophy” (the scare quotes are Posner’s), “wants judicial decisions to ‘make sense’ in a way that could be explained convincingly to a layperson, and is a ‘loose constructionist,’” meaning he is interested in the purpose rather than the literal meaning of the text. “He does not draw a sharp line between law and policy, between judging and legislating, and between legal reasoning and common sense.” (120)

He is, instead, interested in the consequences of his decisions, and he will not resist the inevitability of his policymaking role, at least in certain circumstances. In these situations Posner wants realist judges to accept an active rather than a passive role. “When legislative purpose … is discernible, the realist judge is an interpreter or perhaps a helper. But often it is not discernible, and then the judge is the legislator and has to base decision on his conception of sound public policy within the limits legislators set.” (121)

This may sound like a warrant for judges to make untethered policy—it is; back to this presently—but Posner is at his provocative best in arguing that anti-realist judges carry the same badge and simply refuse to show it. His sixth and seventh chapters thus attack judicial self-restraint and originalism as inadequate and inconsistently applied attempts to cope with complexity.

Self-restraint, first theorized by James Bradley Thayer, epitomized by Justice Holmes and most recently defended by Judge J. Harvie Wilkinson III,[2] has relied on a variety of premises, from Thayer’s belief that it would encourage constitutional deliberation in Congress to Alexander Bickel’s prudential (and patronizing) liberalism. None satisfies Posner, partly because he cannot share the confidence in the legislative process that, for various reasons, undergirds them.

His more interesting claim is that restraint is itself a pragmatic move. Judges, he argues, cannot avoid resolving cases. When a judge faces a case “that doesn’t yield to conventional legal reasoning … [h]e has to decide it, using whatever tools are at hand.” These are rarely formalistic. Holmes’ single-page dissent in Lochner, for example, utilized a gut-level assertion of “reasonableness,” a standard appropriated from Thayer. Posner says that Wilkinson, in pitting realism against restraint, misses the affinities between them. (168)

But this is unclear at best. Thayer’s restraint is linked to the principle of deference to elected bodies. So was Holmes’. Each may have been problematic, but neither constituted jurisprudential carte blanche. Posner’s realism does: note in the quotation above that the judge acts on “his” conception of sound public policy.

True enough, realism’s scope is limited, apparently to cases in which formal reasoning fails. But a standard of constitutional reasonableness—i.e., is it reasonable to believe a limitation on the number of hours bakery employees can work in a week is compatible with the Constitution?—is a very different question from whether such a limit is, of itself and on grounds of policy, reasonable. Restraint is, in a considerable sense, precisely what Posner says is impossible: a passive means of not resolving cases—that is, declining to interfere by leaving the decisions of political bodies undisturbed. To be sure, the judge decides, but the restrained judge in a significant sense decides not to decide. By contrast, Posner opts, explicitly, for an active judicial role.

Another flaw, “perhaps the fatal one,” of Thayer’s restraint is that “given the Constitution’s interpretive plasticity, a full-throated commitment to judicial self-restraint, the kind of commitment urged by Judge Wilkinson but shared by few other judges, would shrink constitutional law to very small dimensions.” (174) This is doubtless true, but Posner leaves unanswered why precisely it constitutes a defect, much less a mortal one. If complexity is the enemy, one means of simplification would seem to be admitting that the plain meaning of the Constitution is not—cover the children’s ears, or at least the lawyers’—all that complicated.

Still, Posner seems to harbor some sympathies for restraint, at least as a pragmatic choice. He betrays no such feelings for theories of interpretation that purport to ascertain the Constitution’s actual meaning. He accuses originalists like Justice Antonin Scalia, for whom he seems to harbor particular (although never personal) animus,[3] of concealing a political agenda as a constitutional one: “In form, textual originalism is a celebration of judicial passivity; in practice, it is a rhetorical mask of political conservatism.” (179)

Textual originalism, on Posner’s reading, is inherently activist; it seeks to contain legislatures within narrow channels defined by a statute’s text but not its purpose. It thus “tilts toward ‘small government,’ a tilt that in today’s America … is a conservative preference.” (183) This much textualists would not, one suspects, deny. But it is not evident on precisely what grounds Posner lodges his complaint. Is he advocating restraint against activism? In the previous chapter he has just dissected the former, and throughout, he embraces an active over a passive role. It is the particular grounds of the activism to which Posner seems to object.

The clearer objection is that textualists are inconsistent in their textualism, the paradigmatic case of which, Posner argues, is Heller, in which the Supreme Court invalidated a District of Columbia handgun ban. The preamble of the Second Amendment, Posner asserts, plainly contextualizes its operative clause. Yet in his Heller opinion, Scalia, who disdains legislative history in other contexts, reads the preamble out of existence with a byzantine and cherry-picked history (“law office history,” in Posner’s telling) of gun rights.

Then, “[h]aving labored to produce an originalist justification for a right to possess handguns for self-defense, Scalia in Heller jettisons originalism by listing permissible restrictions on gun ownership” that sound pragmatic in character. (194) The extension of this right—an obvious restriction of the national government to preserve the authority of the states—to limit the states in McDonald v. Chicago, which Scalia joined, was more “remarkable” still (195), especially when compared to his “passionate … paean to states’ rights” in the Arizona v. United States immigration case.[4]

The purpose of Posner’s attack on Heller and McDonald is not merely to illustrate that some originalists traffic in double standards. It is apparently, and this is where the difficulty ensues, to argue that originalism can accommodate no objective standards at all. Posner succeeds in making the first point. This is unsurprising, since originalists claim no exemption from the laws of mortal deficiency. As to the second, he would do well to refer to Robert Bork’s aphorism that judges live on a slippery slope; “they are not supposed to ski it to the bottom.”[5] That one cannot be perfectly objective in the attainment of standards is not an excuse for abandoning them altogether. If originalism is the interpretive theory most conducive to objective standards, that may recommend it above others, if not above restraint.

Posner’s essential flaw lies in seeing no difference between the top and the bottom of a slippery slope. Since objective standards are not perfectly attainable, he seems to suggest, the slope is friction-free and judges are entitled—indeed, required—to legislate pragmatically. Here the relevant wisdom may come less from Judge Bork than from one’s mother, namely: If Justice Scalia jumps off a bridge, should Judge Posner do it too?

For this is the problem: He does. Where he seems strikingly unselfconscious is in failing to notice the extent to which the flaws he observes in other constitutional theories also apply to his own. Formal reasoning may not be able to attain objective standards fully, but realism does not even try to. Indeed, the substitution of personal beliefs for constitutional standards would appear to be even more tempting, if not outright necessary, in the case of realism than in originalism. After all, in the latter, standards at least nominally obtain. When Justice Scalia sticks his hand in the constitutional cookie jar, he can be called to account for violating his own aspirations; if Judge Posner does, he can reply the cookies were free for the taking.

This, in fairness, he might not deny. The theory is called “realism” for a reason, and one reality Posner wants us to accept is that no formal interpretive theory is capable of guiding judges seamlessly through all disputes. They must, he argues, legislate at least in some cases, and better to do it in the open.

But how? The answer cannot be “no” standards; Posner is not suggesting a free-wheeling process of judging by instinct. The closest he comes to answering that question hints at realism’s most troubling aspect. The suggestion is the standard of expertise. He wants judges to familiarize themselves with statistical regression (the same judges he proclaims incompetent to the practice of historical interpretation); expert witnesses to be technicians independently appointed by courts; law students to be required to take at least one course “of a purely scientific or technical character” (347); and so forth.

There is doubtless value in these suggestions; he may be right about all of them. But there is a certain sense in which they smack of the age-old Progressive belief—and this would be irony for a Reagan appointee known for hardheaded economic analysis—that most political questions have correct answers ascertainable if only experts were loosed to discover them.

“[F]ormalism,” he claims in his conclusion, “trades in obscurantism.” (357) It is opposed to the spreading of knowledge and light, presumably of the technical variety. Politics, in this formulation, is neither a noble nor a necessary calling but a nuisance, a distraction from the discovery of technical solutions to complex problems. The tyranny of judges is a familiar complaint. Posner’s solution may be worse. It distills to the tyranny of experts. That they would be draped in black robes only renders legal realism all the less appealing.

[1] Kenji Yoshino, “Holding Court: Richard A. Posner’s ‘Reflections on Judging,’” New York Times, November 10, 2013.

[2] See Wilkinson’s Cosmic Constitutional Theory: How Americans Are Losing Their Inalienable Right to Self-Governance (New York: Oxford University Press, 2012).

[3] For example: “Justice Scalia is one of the most politically conservative Supreme Court Justices of the modern era—anyone doubting this should read his vitriolic partial dissent in Arizona v. United States. . . .” (182)

[4] Posner provides an equally lacerating takedown of Akhil Amar’s liberal interpretivism. I emphasize it less because I trust Amar’s fanciful America’s Unwritten Constitution is less apt to be persuasive to readers here.

[5]The Tempting of America: The Political Seduction of the Law, (New York: Touchstone, 1990), 169.

Greg Weiner, who teaches political science at Assumption College, is a former political consultant and the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. He is currently working on a book on the political thought of Daniel Patrick Moynihan.

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  1. nobody.really says

    WOW – what an essay. That’s the most nuanced analysis of realism I’ve ever read.

    Three thoughts:

    1. The restraintists argue that by providing clear rules for how a judge will behave – making the outcome of cases more predictable, if perhaps less “fair” – it signals to everyone where the locus of power is, and where the lobbying should occur. If you emphasize legal texts to the exclusion of legislative history, everyone knows to fight over the text, not merely to make statements into the record.

    Realists argue that there is such inertia in the system that a lot of obvious injustice will flow through the courts before there is enough political pressure brought to bear to correct problems with text (or precedent). Confronted with abusive practices by landlords, judges could have said, “Gosh, sorry, but leases only give you rights in land – that is, in the dirt; you have no legally-defensible rights with respect to the state of the buildings upon that dirt.” Wisely or not, judges concluded that the state of the world had progressed beyond medieval property rights concepts – even if the legislature had not gotten around to amending the laws accordingly. Thus judges created common law about expectations of livable conditions. Similarly, judges could have concluded that the sole remedy for women who are sexually harassed in the workplace was to quit. Wisely or not, they concluded that the state of the working world had progressed beyond its medieval norms – even if the legislature had not gotten around to amending the laws accordingly. Thus judges created the tort of sexual harassment.

    Were these judges acting in an unbridled way? Arguably. But judges do that all the time.

    Realists merely advocate doing so explicitly: Describe the issues in the case. Identify the parties that stand to gain if you rule one way, and the parties that stand to gain if you rule the other way. Then state your decision and rationale — but don’t obscure the fact that judges are not mere marionettes of the law, but actually wield raw power. Ironically, realists value the same thing the restrainists do – signaling to all where the locus of power lies. In this way, everyone will know that the appointment and confirmation processes are irreducibly political fights.

    2. Can realism be combined with some more structured political philosophy? I don’t see why not. The judge must ultimately render a decision. She can then articulate the philosophy guiding her vote. If it is a philosophy of restraint, she can state the policy reasons prized by the restraintists. Synthesis achieved!

    3. On judicial candor: Ultimately, are the arguments in favor of candor a bit too intellectual, too concerned with the perspectives of the practicing judges rather than the perspectives of the people in general?

    Most people will never set foot in a courthouse, will never meet a judge. Thus for most people, courts are more a matter of myth and belief than experience. People harbor notions that judges can stand up to the powerful and dispense justice from out of their vast reservoirs of wisdom.

    Even if this is mythical, does the myth serve the role of promoting social cohesion? Even if it’s true that judges are just ordinary people wielding extraordinary power, does it serve society to proclaim this fact nakedly? So Posner suffers experiences cognitive dissonance from participating in a shame. Yet suffering people everywhere pin their hopes on the notion that if things get bad enough, there’s an angel in robes that can be counted on to deliver them. Whose emotional needs are greater?

    The human mind did not evolve to discern truth; it evolved to identify adaptive strategies. Hope is adaptive. Maybe Posner just needs to suck it up and play the role.

  2. gabe says

    “Yet suffering people everywhere pin their hopes on the notion that if things get bad enough, there’s an angel in robes that can be counted on to deliver them.”

    And after the tragic-comedy of the last 5+ years, we are now advocating Hope and Change to be dispensed by the Judiciary!!
    I don’t think so.

    What seems to be missing here is an understanding that it is not the role of the Judiciary to legislate – it is for the legislature to legislate – thus the name legislature. They are at least, theoretically accountable to the people. Most judges are not.

    Sometimes, you must simply say, as a judge, OK, voters “You got what you voted for, now live with it.”
    To do otherwise, drastically alters the constitutional balance and structure (such as remains of it, anyway.

    “The human mind did not evolve to discern truth; it evolved to identify adaptive strategies. Hope is adaptive.”

    Whether Hope is adaptive or not is debatable. Clearly it is not the constitutional mechanism that the people in the collective wisdom (adaptive strategy) decided upon for their limited Republic.

  3. R Richard Schweitzer says


    Richard Posner is an invaluable expositor of the results from the changes in the American legal system since the last quarter of the 19th century.

    Thinking along with the why, and not just the what, of Posner’s thinking, here, with perhaps less value, is an abbreviated, less esoteric, but related, view from the pinnacle of another dung heap of experience of a decade longer:

    Our legal system is now a “purposive enterprise,” in both the civil and criminal functions. It reflects the public desire (demand) for a system or facility through which “things can get done,” or objectives attained. The criminal legal system now has the objectives of preserving levels of civil order, reducing the incidence, extent and varieties of crime, and enforcing governmental administration. (The side effects have led to concerns of moral issues such as “justice” and equity). The civil legal system has become predominantly a facility for the advancement, defense, or implementation of social, political and commercial interests, a facility for regulation of governmental administration; while precariously maintaining an earlier predominant function of the identification and enforcement of obligations in the social order.

    While not so polished a picture as Posner’s, this has led to jurists becoming the “herders of cats;” a variety of cats to be sure, including the herding by Superior Courts of other jurists similarly engaged. This all has to be done within the range of the legal systems that the public has come to desire and insist upon. Now as to the “why.”

    Law, in its old original sense, describes and defines, but does not delineate, the social order and the relationships within it. That Law does change as the social order and the relations within it change. Rules of Policy (legislation and its excrescences-which are given “the force of law”) describe, define and delineate a *desired* (intended) social order, the relations within it, its purposes and objectives. The predominating issues before jurists under the present legal system are matters of Rules of Policy. There are still requirements to identify obligations and provide for their enforcement.

    Jurists are now drawn from the legal profession whose members are now being incubated in an academic system that recognizes and concentrates upon the predominance of Rules of Policy. The current legal system requires operators trained to provide the services necessary for the operation of the currently demanded facilities described above, and the academies provide that training. This has brought the general but unearned public estimation of lawyers to the equivalent of sanitation workers, despite the public’s requirements for both. Thus, from such clay, are jurists being formed.

    In all, it is amazing how the vestiges of tradition, past wisdom and the efforts at continuous learning by a remarkable few provide us with the best jurists in Western civilization.

  4. gabe says

    So, we have switched from a regime based upon Rule of Law to Rule of Policy.
    I have always thought that the Legislature should be a little fonder of Burke than Paine. Perhaps, the modern Judiciary should be instructed in Burke as well.

    Good points, richard!

    take care

  5. says

    Reliance on experts is an ersatz Deus ex Machina device used to salvage half-baked and poorly reasoned policies. The appeal to authority is a well-known logical fallacy, yet is the proposed method to navigate the complexities of the modern world. We have had 500 years of the scientific method, and have succeeded in re-inventing the witch doctor.

    There are several reasons why the appeal to expertise is of limited efficacy:

    1.) Expertise is always relative, never absolute. Someone who knows 5% of a topic about which no on else knows anything is an “expert.” He may be more likely than anyone else to be correct regarding a particular topic and still be much more likely to himself be incorrect.

    2.) Experts are subject to the same biases as anyone else. Perceived expertise is a tool that can be used for any number of ends, benign and malignant. An expert’s opinions can be influenced by ideology as well as objective data and reason. All experts have a perspective that may or may not conduce to the interests that seek their guidance. There are, for example, a lot of 5-4 Supreme Court opinions.

    3.) The process of determining the qualifications of experts creates a potential infinite regression of uninformed inquiry, gut feelings and blind guesswork. Deciding who is an expert relies upon the same processes as evaluation of the underlying issues, creating opportunities for quacks, shysters, charlatans and grifters. The difference between a learned expert and a nutty professor is not always obvious to the layman…or the “expert.”

    4.) Reliance on experts create “blind men and the elephant” type of confusion. The adage that “if all you have is a hammer, the whole work looks like a nail” applies particularly well to persons who have narrow interests and have devoted their studies to insular subjects. Such effects are evident in this forum where lawyers and economists and historians and political scientists look at the same topic and see wildly different problems, solutions and implications.

    Experts have their role, but their opinions should be viewed with no less skepticism than the expert herself is expected to use in inquiring into the world around them.

  6. says

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