The tempting of Richard Posner.

• Author: Bostan, Richard

The reputation of Richard Posner among law professors of the Left, its measure being taken from published and casual comments, might not be any blacker if he boiled babies in their own blood and ate them.(1) Actually, he has suggested only that babies be bought and sold on the free market, as a more efficient alternative to government-regulated adoption (Landes and Posner 1978, 323). (In the absence of price incentives and disincentives, the demand for newborns continually outstrips supply. Meanwhile millions of unwanted fetuses, not permitted to possess any exchange value, are killed -- in this context a better word would be "wasted" -- still in their mothers' wombs.) With capitalism and profits roughly equivalent in their depravity to cannibalism in some legal academics' eyes, it is no wonder Posner is reviled. But this guru of the movement called "Law and Economics," at one time a professor of law himself and currently a judge on the U.S. Court of Appeals, has other aspects to his thought that should endear him to enemies of conservatism. Indeed, at least since the publication of Posner's book The Problems of jurisprudence, call by conservatives for Posner's elevation to the U.S. Supreme Court seem inexplicable. Fond though Posner is of free enterprise, his jurisprudence is distinctly at odds with the jurisprudence on which conservatism smiles.

Conservatives are not all cut from the same marble. Some incline to libertarianism, some to a traditionalism that reveres morality and order before individual freedom. Others, of an ecumenical bent, try to fuse together the claims of liberty and tradition, perhaps on the assumption that out of the tension of opposites -- if opposites they be -- comes moderation, an Aristotelian and conservative virtue (Evans 1971, 30). Thus there is no single preferred philosophy of law among conservatives. By implication, what Richard Posner conceives to be good laws and bad laws, though not without interest, is indecisive in determining whether his jurisprudence is of a conservative cast or better fit in some other pigeonhole. Decisive, however, is his philosophy of judging. The role of courts and how judges ought to perform their office, every bit as important in jurisprudence as philosophy of law, are issues where there can be said to be a specific conservative position, an orthodoxy with which Posner is out of sync.

Take Me to Your Leader

In their views on the judiciary, traditionalist conservative intellectuals in the United States, with the exception of the natural-law booster Harry V. Jaffa, line up behind Robert Bork.(2) Liberal senators rebuffed his Supreme Court nomination in 1987 -- a kind of martyrdom to conservatives. And the media attention he received at the time, which he did not relish, has had the unintended benefit of lending Bork the kind of visibility and public stature legal scholars dream of but seldom attain. The inevitable book, Bork's The Tempting of America: The Political Seduction of the Law, became a best-seller and what one law professor calls "surely the most widely and most unfavourably reviewed book in law review history" (Graglia 1992, 1019). Sticking with the superlatives, it and its author probably garnered the highest number of sheer insults in law review history.(3) Constitutional scholarship in American legal academe amounts almost to vindicating the judicial activism of the Warren Court era, which extended into the Burger Court, and the spirit of which is not dead even in the Court currently presided over by conservative Chief Justice William Rehnquist. It was against that scholarship and the judicial activism it lauds that Bork set his book.

Recounted in the early pages of The Tempting of America is an anecdote involving Oliver Wendell Holmes Jr., that singular giant of U.S. Supreme Court history. After Justice Holmes and Judge Learned Hand had lunched together one afternoon, and Holmes began to leave to resume work, Hand called out, "Do justice, sir, do justice." Holmes reproached him: "That is not my job. It is my job to apply the law" (Bork 1990, 6). Holmes did not intend, and Bork does not intend, to say that a judge ought to be unjust. But laws are sometimes unjust, and without being unconstitutional. When a judge is faced with one of those laws, as a servant of the law, he has to swallow hard and apply it. Perhaps that implicates him in injustice. (Holmes probably thought so, hence his reply to Hand.) Holmes, like Bork, believed that that is preferable to judges thinking of their duty as serving justice first and law second. Otherwise, the just judge would be, in a way, "above" the law. Rule by Platonic Guardians, whatever its merits, must give way, or self-government by the people must; they cannot stand together. That, in a nutshell, is the thesis of The Tempting of America. In the United States, the merits of the two regimes are irrelevant, frankly. America's Founding Fathers -- who wrote a constitution that did not even make explicit allowances for judicial review (Graglia 1991, 1350) -- chose self-government, and our elected representatives have not used the amendment process to replace self-government with an improved design, as of the last time Bork checked.

Bork counsels the judiciary to restrain itself, to resist the "temptation" to substitute for law abstract principles of justice and moral philosophy, which, Bork adds, may be less disinterested principle than raw policy preference. Bork indicates that over the course of American constitutional history, "judicial activism has had no single political trajectory.... The values enforced change, and sometimes those of one era directly contradict those of the prior era" (Bork 1990, 17). At the turn of the century, and at the beginning of Franklin Roosevelt's New Deal, the U.S. Supreme Court zestfully struck down government regulation of economic and labor practices, for what does not seem to be any better reason than that those legislative measures ran afoul of the laissez-faire economics in which the justices believed. But for the last four decades, judicial activism, reflecting elite intellectual opinion and cheered by law professors, has advanced what Bork calls the "modern liberal agenda" (9) when the give-and-take of democratic politics has let the liberals down.

Though personally enamored of laissez-faire economics, Bork evenhandedly dismisses both the old and the new style of political judging:

Constitutional philosophies always have political results. They

should never have political intentions. The proper question is not

what are the political results of a particular philosophy, but, under

that philosophy, who chooses the political results.... [In Bork's

philosophy] legislators make the political decisions, and the courts

do their best to implement them. That is not a conservative

philosophy or a liberal philosophy; it is merely the design of the

American Republic. A theory of judging that allows the court to

choose political results is wrong, no matter in which direction the

results tend. (Bork 1990, 177)

Not that courts should rubber-stamp whatever legislatures propose to do. Where the Constitution clearly draws a line that the government may not cross, Bork would have the judiciary hold that line against legislative encroachment (147). It is essential, however, that the protected right be in the Constitution, not concocted out of thin air.

Judicial activists whose views Bork canvasses, some of whom have sat on the U.S. Supreme Court, try to justify wide judicial discretion in interpreting the Constitution by lionizing a "living Constitution," by which is signified a document that has no fixed meaning but instead evolves over time and is malleable material out of which judges can fashion the tools needed in different circumstances to "do justice." Bork calls that interpretive theory an excuse for judges to avoid the work of interpreting law. He says there is only one credible means of interpreting the Constitution, despite most law professors' holding it in disrepute as "thoroughly passe" and "probably reactionary" (143). That means is original understanding:

If the Constitution is law, then presumably its meaning, like that of

all other law, is the meaning the lawmakers were understood to

have intended. If the Constitution is law, then presumably, like all

other law, the meaning the lawmakers intended is as binding upon

judges as it is upon legislatures and executives. There is no other

sense in which the Constitution can be what article VI proclaims it

to be: "Law." (145)

Unfortunately, The Tempting of America is itself replete with quotations from constitutional law scholars who refuse to concede that the Constitution is law -- forget what Article VI says. To American judicial activists who conceive of constitutional law as a quick road to progressive social change, the Constitution's text is quite an inconvenience. The Constitution itself though, as a revered artifact, has been a useful pretext for...