How Judges Think.

• Author: Brickner, Paul
• Position: Book review

HOW JUDGES THINK

BY RICHARD A. POSNER

CAMBRIDGE, MASS.: HARVARD UNIVERSITY PRESS, 2008

PP. 387, $29.95

Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court Justices are at risk of acquiring an exaggerated opinion of their ability and character. (1) Judge Richard A. Posner, one of the great legal scholars of this generation, (2) has produced a study that applies his vast scholarship and extraordinary analytical abilities to better our understanding of the judicial process and judicial thinking, reasoning and behavior. At first, his book seems to be a more comprehensive version of then-Judge Benjamin N. Cardozo's enduring study, The Nature of the Judicial Process, which was published eleven years before Justice Cardozo joined the U.S. Supreme Court. (3) However, Judge Posner provides much more mental substance and detail than Cardozo's slender classic.

Benjamin N. Cardozo was elected in 1913 to a seat on the New York Supreme Court, a trial court. (4) In 1914 a few weeks after his term commenced, Governor Martin H. Glynn elevated him to the New York Court of Appeals, that state's highest court. (5) The new judge made quite a name for himself. By 1921 he was invited to speak at Yale Law School. (6) He told the Dean at first that "he had 'no message to deliver.'" (7) However, while he visited with the Dean and faculty, then-Judge Cardozo was asked if he could tell the students how he decided his cases and other questions that flowed naturally from the first question. (8)

Judge Cardozo repeated those questions in his introductory lecture, (9) the first of four that he delivered at Yale Law School before an enthusiastic audience that grew so large a more spacious venue was required to accommodate the crowd. (10) When he concluded, the audience gave the judge a standing ovation. (11) The lecture format required reasonable parameters and length. In turn, those factors helped focus the short work into a well read and frequently reprinted memorable classic.

The legal profession is interested not in how judges think in general, but how they think in deciding cases. We are concerned with those decisional thought processes that are the cornerstone of the judicial process at the trial and appellate levels. At the time of his study, Cardozo had been a Judge of the New York Court of Appeals; he did not become an Associate Justice of the U.S. Supreme Court until 1932. Although Judge Posner provides some discussion of how trial judges think, his study is largely one about the mental processes of federal appellate judges.

Judge Posner is no stranger to the life and work of Justice Cardozo. He delivered a series of lectures on Justice Cardozo at the University of Michigan Law School in 1989 that were published the following year by the University of Chicago Press. (12) As a result, we should not be surprised that many insights provided by Judge Cardozo in 1921 are given once again by Judge Posner in 2008. Both write from the perspective of the appellate judge--Cardozo of the state court system and Posner of the federal court system.

While Judge Cardozo's analysis provides four methods of deciding cases, (13) Judge Posner provides nine theories of judicial behavior. (14) Judge Posner's excellent work is always interesting, if at times unduly analytical and complex. He writes about the impact on the decisionmaking process of those few judges who harbor ambitions for higher office. (15) A politically savvy judge might want to curry favor with the appointing authority or might want to avoid disenchanting a governor who might be headed for the U.S. Senate. (16) But most judges, he states, often simply want to be regarded as good judges who decide their cases on a non-political basis. (17) Posner makes frequent references to judges wanting to be good judges. (18)

He begins by telling the readers that the fact that judges "do not deliberate (by which I mean deliberate collectively) very much is the real secret." (19) He does not venture an explanation. However, Posner's small information point provides readers with a major insight into the appellate judicial process. Outsiders who think that collective deliberation is a cornerstone of the judicial process at the appellate level will find Posner's revelation disquieting and even startling. He observes that collective deliberation among appellate...