Posner's Reflections on Judging and on Scalia's Originalism

Richard Posner's "Reflections on Judging" is not a new book. It was published in 2013, and it appears to adapt prior articles and other writings of Judge Posner on the same themes. But I only just read the book over a short vacation in Palm Springs, California, and in any case it hasn't dated in three years (except perhaps with respect to his very brief discussion of MOOCs). I say it remains current because I want to encourage you to pick it up and read it.

9780674725089Come to think of it, with the passing of Antonin Scalia, "Reflections on Judging" couldn't be more timely. One of Judge Posner's arguments - perhaps the central one, or at least a facet of his thesis that complexity is threating to overwhelm justice - is that Justice Scalia's championing of "originalism" has distracted judges from engaging the complexity of the real world, making law a poorer servant to society than it should be. It's quite fun - I hope less in a mean-spirited way than in a civicly-minded intellectual way - to see Judge Posner ridicule Justice Scalia's performances as amateur historian.

Nor is it the case that justice is simplified (simplification might at least be a beneficial byproduct, you might think) when emulating Justice Scalia's stubborn refusal, at least professionally speaking, to live in the present. In aid of his life-long campaign of distraction, Scalia propounded "canons of construction," or rules of interpretation, that, according to Posner, are highly complex and internally inconsistent. Study and practice of these cannons focus a judge's attention ever inward, train him to fetishize texts which to a normal person appear plainly imperfect. For all the close reading, meaning is beside the point, and law is an afterthought. As you might suspect, methods of interpretation that forbid reference to society, culture, the economy, demographics, values and facts give the judge unrestricted license to pursue personal political agendas.

Refreshingly, Judge Posner says that Scalia's cannons of construction are a waste of time. Not a single one is helpful! He feels interpretation is a natural function of the human mind, and it is this more natural human function which not just welcomes but runs with intellectual curiosity to the world as it is, to the facts on the ground, to the understandings of science, to the study of cultures, for reference, context and guidance.

Posner does get meta with respect to interpretation in this respect: he believes that social science and psychology show that humans have cognitive biases that make their memories and opinions unreliable, and that it behooves a judge to be cognizant of these and self-reflective of her own inevitable biases. (One of these he calls out in this book is the cognitive heuristic of "anchoring," which I had not known of before. I educated myself on this concept by reading a Wikipedia article. This was, I now know, a very Posner-like strategy to obtain a working knowledge of a concept in the service of a task at hand.)

The best thing about this book is that Judge Posner's prose style is entertaining and completely non-judicial. And apparantly he writes his judicial opinions in the same voice!

I'm going to read more of Judge Posner's work. If you know of a discussion group organized around his writing, please let me know.


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