THE PRAGMATISM OF INTERPRETATION: A REVIEW OF RICHARD A. POSNER, THE FEDERAL JUDICIARY.

• Author: Thapar, Amul R.
• Position: Book review

THE FEDERAL JUDICIARY: STRENGTHS AND WEAKNESSES. By Richard A. Posner. Cambridge and London: Harvard University Press. 2017. Pp. xv, 430. $35.

INTRODUCTION

Just when you thought Richard Posner (1) couldn't write any faster, he managed to squeeze two books into one. The final publication of his judicial career, The Federal Judiciary: Strengths and Weaknesses, is a fitting valedictory for America's most prolific judge. It features a robust procedural critique of the operations of the federal courts, alongside an impassioned substantive call for his colleagues to adopt Posner's brand of judicial pragmatism. Those two theses, however, are hopelessly at war with each other: the case-by-case interpretive pragmatism Posner advocates would directly undermine the systemwide pragmatism he claims to prioritize in the courts' operations.

In assessing federal judges' strengths and weaknesses, Posner finds much to critique. His assessments are incendiary, profound, and trivial--often all on the same page. Readers should arrive with an appetite: a single paragraph on page (2) 1, for example, covers the courts' reliance on multifactor tests and canons of construction, lack of candor, verbosity, jargon, pretense of objectivity, inadequate caseload, inadequate argument time, inadequate schedule, and use of the dreaded Bluebook.

Many of these staccato objections echo portions of Posner's past works. This particular book's most sustained and relevant criticism is that the bench and bar are too rigid and reactionary: backward-looking "formalism," focused on dusty precedents and historical meaning, often masks judges' true reasoning. (2) By elevating form over substance, Posner suspects, advocates and judges apply a veneer of objectivity to half-baked arguments, political preferences, and outcome-oriented decisions.

This first thesis, criticizing legal rigidity, contains a grain of truth. Lawyers and judges can be a stodgy bunch (pp. 4, 50). And that can make the law less accessible and less sensible. Posner highlights many aspects of our system--from the courts' pace to the caselaw's complexity--that could improve with a less formulaic and more plainspoken approach. When briefs and opinions elevate form over substance, they can obscure the governing legal principles and diminish the utility of the judicial process as a whole.

But Posner's second major thesis, advocating consequentialist interpretation, is a strange response to this problem. Posner complains that formalist judges are using interpretive tools to achieve outcomes they like. (3) His solution? Replace the formalism that he believes is backward-looking with an aggressive substantive pragmatism that eschews traditional limits of judicial restraint and democratic accountability. (4) But if the problem is masking outcome-driven decisions with legalese, isn't the solution more transparency, sounder reasoning, and greater objectivity? Not according to Posner. Instead of binding policy-driven judges to the rule of law, Posner would liberate them to do justice as they see fit--at least when they can avoid any textual or precedential barriers "by hook or by crook." (5)

Setting aside problems of popular consent and separation of powers, Posner's version of pragmatic case-by-case judging, when considered in the aggregate, fails even on his own pragmatic terms. Litigants, lawyers, and judges depend on the stability and ascertainability of the law. Yet without an advance commitment to basic interpretive principles (those formal legal texts, precedents, and rules of interpretation this book disparages), who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law? Everything is up for grabs when judges opt "not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem[s]" before them (p. 80).

This view of the judge's role is fundamentally at odds with our experience litigating and deciding cases in the federal courts. Equally important, "pragmatic" interpretation unleashes great unpredictability outside the courtroom: it becomes hard to advise clients, arrange legal relationships, and plan everyday conduct.

Posner's substitution of forward-looking pragmatism for backward-looking (which is to say, ordinary) tools of legal interpretation, therefore, would only exacerbate the operational shortcomings he critiques. And vice versa: his operational critiques--though often valid--have little to do with his substantive critique of legal formalism. From our perspectives in and among the federal judiciary, Judge Posner's cure would only worsen the disease.

THE PRAGMATIC JUDICIARY: EFFICIENT, TRANSPARENT, AND INTELLIGIBLE

[T]he sum of the "small matters" discussed ... is not itself a small matter. (p. 60) What did The Bluebook ever do to Richard Posner? His scorn for the "Uniform System of Citation" is unrelenting. No subject (save Justice Scalia, and perhaps Justice Kagan's comments about Justice Scalia) (6) comes in for harsher treatment in this book. Yes, we (and countless judges, lawyers, and students) agree that the 500-page ukase is "hate[d] ... with a passion" (pp. 21, 46-48, 61). The Berkeley Journal of Gender, Law & Justice, whose statement explaining its decision to ditch The Bluebook Posner block-quotes, was amply justified in rejecting the "investment of editorial time and effort which is wildly disproportionate to the [Bluebook's] utility" (pp. 46-47). But what does that have to do with the strengths and weaknesses of the federal judiciary?

The same question can be asked of many other Posnerian pet peeves. These command substantial attention in The Federal Judiciary (if not the actual federal judiciary). Given the book's ambition, these harangues often border on the trivial. Why does it matter whether law clerks call their boss "Judge," "Your Honor," "Amul," or "Hey you"? (7) For that matter, why does Posner care whether the judicial workplace is called "chambers" (derived from the Old French chambre, he explains) rather than "office" (derived from the Old French ofice, Google explains)? (8)

"What does it tell us," Posner asks, "about our judges, and the legal profession more broadly," that "such antiquarian silliness persist[s]?" (p. 7). One could ask the same question about many other objects of his disapproval: the spittoons behind the Supreme Court bench (p. 216), censored curse words (pp. 216, 390-92), untelevised judicial hearings (pp. 13-14, 215), and unpublished bench statements (pp. 215-16). What do they tell us about the strengths and weaknesses of the federal judiciary? Candidly, we have no idea.

Other trifles, however, may add up to something more. Though the lead is well buried, "the sum of [at least some of] the 'small matters' discussed" shows how a persistent emphasis on form can diminish the substantive quality of the courts' output. (9) Posner identifies a number of ways in which courts operate less transparently, less efficiently, and less intelligibly--in a word, less pragmatically--than they should.

It is true that the federal judiciary is weakened, however indirectly, by law schools' general inattention to legal-writing instruction. So too by the academy's failure to teach procedure and trial practice in a practical manner. Inexperienced law clerks asked to draft their bosses' opinions, Posner observes, may regurgitate their loquacious bench memos inspired by abstract academic writing (p. 59). Wouldn't we be better off if all that time spent Bluebooking was devoted to persuasive writing instead?

Posner is definitely correct that "formulaic" legal writing can lead to verbose and stilted opinions that may shade, rather than illuminate, governing legal principles. (10) Few things are as frustrating as the judicial opinion that spends pages rehashing each side's arguments only to conclude, without elaboration, that "the court is persuaded" by one side or the other. Such rulings have all the explanatory power of Bartleby the Scrivener--which is to say, none at all. (11) The judge would do better simply to declare which side won; after all, that would save everyone a lot of time.

We agree that our system suffers when rote argumentation, excessive string-citation, and legal jargon dictate, rather than explain, judicial decisions. Muddled multifactor tests, convoluted tiers of deference, and illusory standards of review may prove good fodder for law-review articles; they do markedly less to serve clients' interests in the stability, predictability, and (make no mistake) affordability of the law. (12) Posner is right to target this sort of overly formulaic judging--exemplified by his concerns about deference to the administrative state (p. 30)--because it disserves litigants and sacrifices the legitimacy courts claim from publicly showing their work. (13) We would have preferred to hear more from him about how these practical ills affected the output of his court during nearly four decades of judging.

So at least some of Posner's smaller procedural points do add up to something more: the legal process should highlight rather than obscure the core of judicial decisionmaking. The practical operations of the federal court system Posner envisions are fairly attractive: Law clerks schooled in the actual practice of litigation would support, but never supplant, the reasoning and writing of federal judges. The bench would announce transparent decisions in an accessible manner, with a better appreciation of the law practical effects outside the courtroom. And, in one of Posner's most enticing suggestions, appellate judges, even (especially?) at the Supreme Court, would "ride circuit" in the lower courts. This would require them to apply their tests and precedents in the mine-run of litigated disputes, rather than in their more curated appellate dockets. (14) This, more than anything, could lead judges to prefer...