Judge Posner, Judge Wilkinson, and judicial critique of constitutional theory.

• Author: DeGirolami, Marc O.
• Position: Richard Posner, J. Harvie Wilkinson III - Introduction through II. The Judge at Work: Judicial Writing B. Partial-Birth Abortion, p. 633-663

ABSTRACT

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson--in the popular press, in law review articles, and in books--have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own ?

This Article answers that question--a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of fudge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a dose reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges ' own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions--character traits that pertain to judicial excellence--that can and should be criticized on their own terms.

INTRODUCTION

"The most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits.... How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step!"

--Joseph Story, Commentaries on the Constitution of the United States (1833)

Not long ago, Chief Justice John Roberts dismissed academic legal writing as "abstract" and "philosophical" in ways unhelpful to the judiciary and "legal practice." (1) His comments elicited a flurry of responses, but the discussion rapidly exhausted itself. The reason may well be that the tension he highlighted has an enduringly familiar quality. There has always been a gap between theoretical and practical perspectives on law in the United States and the Anglo-American legal tradition more broadly. A tradition of circumspect separation stretches back at least as far as the anxious misgivings of medieval English lawyers and judges with respect to "academic generalizations about natural law" and its role in adjudication. (2)

Today, the distance between judges and academic theorists is particularly pronounced in constitutional law. Judge Richard Posner, for example, has argued that constitutional theory is a waste of time, ideologically motivated, and useless to judges. (3) And Judge J. Harvie Wilkinson III has argued that all of the "cosmic" constitutional theories on offer now are fundamentally flawed and threaten democratic self-governance. (4) Yet both Posner and Wilkinson--in the popular press, in law review articles, and in books--have advocated their own distinctive approaches to constitutional adjudication. Judicial pragmatism for Posner and judicial restraint for Wilkinson have been taken by many to be the same kind of theory that each criticizes. But both Posner and Wilkinson deny that they are offering a theory at all. Posner has gone even further, invoking Samuel Johnson's old aphorism in likening a judge who writes about constitutional law to "a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all." (5) This is all puzzling. How do these judges simultaneously reject constitutional theory yet purport to replace it with approaches like judicial pragmatism and judicial restraint that seem to be theories of their own? (6)

This Article answers this question through a close reading of revealing slices of the extrajudicial and judicial output of these two distinguished federal judges. These judges' writings hold particular promise for understanding the relationship of constitutional theory and constitutional adjudication, for Judge Posner and Judge Wilkinson have contributed to both. Both are former law professors at top institutions--Posner at the University of Chicago School of Law, where he remains a senior lecturer, and Wilkinson at the University of Virginia School of Law. And they are prolific legal scholars. Each has produced several books, dozens of articles, and a great deal of other writing, and each has written specifically and extensively on constitutional theory. Both have also authored scores of opinions on constitutional questions across their careers, so that one can usefully compare their judicial and extrajudicial writing on constitutional theory and constitutional law ("that least disciplined area of American law," as Posner has put it). (7) Having worn judicial robes and academic gowns, they are doubly qualified to address constitutional law from the perspectives of both judging and theory.

It is also illuminating to examine these two thinkers together because Judge Posner and Judge Wilkinson sometimes treat each other as antagonists--even foils. Posner is a pragmatist; Wilkinson is a legalist. Posner emphasizes the importance of economics, empirical inquiry, and reliance on social science in the context of an overarching project to "overcome" law; (8) Wilkinson emphasizes legal materials and judicial restraint in the context of stressing the value of the rule of and under law. (9) Posner criticizes judges who mouth platitudes about the determinacy of doctrine; Wilkinson criticizes judges who are in the grips of theoretical or sociological abstractions and who feel comparatively unconstrained by doctrine. The two men appear not merely to disagree but to come at adjudication guided by directly opposing theories.

Yet beneath these disagreements, there is a deeper and more fundamental harmony of perspective that unites them. This Article excavates and describes that perspective, one that is particularly salient given their doubly intermediate position between the Supreme Court and district courts, and between academic and judicial discourse. This perspective leads Judge Posner and Judge Wilkinson to criticize constitutional theories that ignore or marginalize the relationship between constitutional interpretation and judicial role in constitutional adjudication. This is the critical dimension of their writing about constitutional theory. But their writing as judges also reveals a constructive dimension: more than a constitutional theory, what judges bring to constitutional adjudication is a distinctive perspective that arises out of their particular office within the judicial hierarchy. The influence of constitutional theory is less powerful than, and never abstracted from, factors relating to judicial role. The judges' extrajudicial "theory disclaimers" should therefore be accepted. Rather than as theories, judicial pragmatism and judicial restraint are best understood as dispositions that each judge advocates toward the activity of judging in light of their particular role in the federal judicial hierarchy.

This Article makes three contributions: first, it brings to light the fundamental agreements in these judges' writing about constitutional theory, agreements that run far deeper than their heralded differences and that stem from their shared, situated understanding of their judicial role; second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges' own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence; and third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions--character traits that pertain to judicial excellence--which can and should be criticized on their own terms. Our project in this Article is limited: to identify a distinctive perspective in the work of two prominent American federal judges and to pursue certain associated insights into constitutional adjudication. Yet we examine Judges Posner and Wilkinson not because there is something that binds the thought of these two judges as a unique pair, but because exploring what binds them lays bare a larger perspective pertaining to the judicial office that they hold. When they sit as judges, they are not theorists on the bench, but judges--and they are working from within a practice that generates a distinctive perspective on constitutional adjudication.

Insight into this perspective emerges from careful consideration of the different types of writing published by these two judge-theorists. Part I of this Article--"The Judge at Rest: Extrajudicial Writing"--explores a selection of Judge Posner's and Judge Wilkinson's respective extrajudicial writings about interpretive method and judicial role in constitutional cases. In these writings, the positions staked out by the judges seem most divergent. Part II--"The Judge...