In an early post on this blog, Joel cited some articles by and about Judge Richard Posner, and noted that while Posner
accepts that there are limits, he refuses to accept a clear line between interpretation and policy-making. This line is, if not the definition of the "rule of law," a critical component of the rule of law. Posner rejects the separation between law and politics.
Posner's views on this issue have recently been elaborated and criticized over at Balkinization by Brian Tamanaha. To get the full picture, it's probably best to read the whole post, but I'll put some excerpts here. According to Tamanaha, Posner's view is as follows:
Posner believes that judging on the Supreme Court is almost entirely political, and he believes that judging on the Court of Appeals (his court), and judging generally, is substantially political. This view of the political nature of judging is widely shared among legal academics and political scientists, although many judges disagree. Posner, furthermore, advocates that judges should decide cases in a pragmatic fashion, oriented toward rendering the most reasonable decision in a given case (all things considered).
To obtain a sense of Posner’s view of these matters, consider his comments (paraphrased):
When asked by Leiter whether he thinks that judges have a duty or obligation to apply the law, Posner pointedly does not accept the terms of the question. Rather than characterize it as a duty, he said that there are basic “rules of the game” that judges must conform to (violators risk effort-wasting and embarrassing reversals), to wit: judges must follow any statute or precedent that clearly resolves an issue. Judges are constrained by rules in this sense.
However, according to Posner, these constraints are almost never at play at the level of the Supreme Court (cases that make it to that level are seldom clear in legal terms, and the Court can repudiate its own precedent), and “very often not in play” at the Court of Appeals. “A significant fraction” of the cases heard by the Court of Appeals is not clearly determined by statutes or precedent. Moreover, Posner says, the ordinary canons of statutory interpretation and reasoning by analogy do not help produce a legal answer.
Hence, in that situation, a judge must render a decision about the most reasonable result for the present and future. There is nothing particularly legal about this decision. Judges simply make policy judgments based upon their life experiences, temperament, and ideological views. [Notice how much Posner agrees, at least on these points, with the old “Crits”—Critical Legal Studies folks who were highly skeptical of the role of law in judicial decision making.]
Posner fully embraces the implications of his views of judging. He recognizes that judges may have different opinions about what is a reasonable result in a given case—that’s just the way it is. Whichever view happens to have the most votes on a judicial panel wins. Outcomes in given cases are therefore a function of the vagaries of who happens to be assigned to a given panel. Tempering this implication, Posner also points out that appellate judges agree a great deal of the time, but he insists that this agreement is not so much attributable to shared interpretations of the law, but rather to similar outlooks, experiences, and values held by judges, which produce shared judgments about what is reasonable. Since decisions in these cases rest upon political views, Posner accepts that the political views of individual judges should be considered in the appointments process (and he adds that, rhetoric notwithstanding, the Senators already know this).
In response, Tamanaha sets out the following opposing views:
My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.
I confess that I am, generally speaking, somewhat sympathetic to Posner's view of how judging actually works. But I also confess that I'm no expert, and have only read bits and pieces about this issue. Regardless of which side is right or wrong, though, what intrigues me is how these ideas apply to the WTO dispute settlement system. My sense is that most people who participate in WTO disputes in some capacity would disagree that Posner's view is correct, and that this is especially true among those who work in the WTO Secretariat or those who serve as panelists or AB Members. The mere mention of "policy preferences" seems to set people on edge, provoking a response that of course this is not a permissible consideration. Now, it may be that I have simply not talked to enough people, and there are in reality plenty of WTO Posnerians out there. On the other hand, I wonder if the Posnerian view is more prevalent among Americans (this may or may not be the case -- I'm not sure), and it is the relatively low percentage of Americans working on WTO disputes in a judging capacity that has resulted in this view not taking hold to a greater extent.
At some point in the distant future, I'd like to look at this issue in more detail. For now, though, I just thought I'd set out the basic issues and see if anyone had any thoughts.
