192 The Model Elaborated

can be astonishingly broad. “Literal when narrow” may be the practical

meaning of strict construction. The loose constructionist is a nonliteral-
ist, but he does not necessarily favor broad interpretations of statutes or
constitutional provisions, creating new judicially enforceable rights. He
could in other words be a practitioner of judicial self-restraint rather
than of judicial activism.
“Textualism” is literalism. “Originalism” means giving the words of a
constitutional provision (the term is rarely used in relation to any other
type of enactment) their original meaning—more precisely, restoring the
understanding of the ratifiers. So the two terms are quite close, except
when the meaning of crucial terms has changed over time—I give the
example of habeas corpus in chapter 10—and except that if the statutory
text is ambiguous a strict constructionist will want to construe it against
the litigant who is relying on it while the originalist will be guided by the
meaning that the text’s authors (or ratifiers, in the case of constitutional
provisions) would have assigned to the text. Textualism and originalism
share with strict construction an antipathy to interpreting a statute or a
constitutional provision by reference to its purpose. Semantic rather
than pragmatic or policy-oriented methods of interpretation,31 all three
are quintessentially legalistic techniques.
Interpretive issues arise in the domain of precedent as well as in that
of legislative texts, usually in the form of judges’ attempts to distinguish
between the holding of a case, which is the part that has precedential ef-
fect, and the language of the opinion that could be detached without
changing the holding.32 Despite its antiquity and its seeming essentiality
to the operation of a case law system, the distinction is in practice elu-
sive. It is a sign of the growing influence of pragmatic decision making
that judges make less of the distinction than they used to. The practical
issue always is simply how much of an earlier case you are going to leave
alone, and that depends on a host of considerations (such as the cir-

31. These methods, defended in Richard A. Posner, The Problems of Jurisprudence, pt. 3
(1990), license “loose” interpretation because they do not require the judge to stick strictly to
the words of the enactment that is to be interpreted. For comprehensive treatments of theories
of statutory interpretation, see William D. Popkin, Statutes in Court: The History and Theory
of Statutory Interpretation (1999); William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth
Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, ch. 7 (4th
ed. 2008).
32. See, for example, Michael Abramowicz and Maxwell Stearns, “Defining Dicta,” 57 Stan-
ford Law Review 953 (2005), and references cited there.
 Judicial Method: Internal Constraints on Judging 193

cumstances of the earlier case relative to present circumstances, the rule

implicit in the earlier case and whether it comports with present circum-
stances, and the desirability of limiting judge-made rules to factual situ-
ations akin to those that gave rise to the rule) that can no more be re-
duced to a formula than the decision whether to overrule a case can be.
I said in chapter 4 and repeat here that interpretation is a natural, in-
tuitive human activity. It is not rule-bound, logical, or step-by-step. It is
possible to impose a rule—to say to a judge, we don’t want you to figure
out what the legislature was driving at; we want you to interpret statutes
as if you were a newcomer to the culture and had only the literal mean-
ing of the statute to go on. The strict constructionist wants to deduce the
outcome of a statutory case from a major premise consisting of a rule of
law clearly and explicitly stated in legislation or the Constitution and a
minor premise consisting of the facts of the case. Preferring rules to
standards and words to activity in the world, he tries to dissolve any in-
terpretive difficulties presented by the often vague or confused wording
of statutes by invoking rules of interpretation (the “canons of construc-
tion”) in an effort to make interpretation a rule-bound activity. If the at-
tempt fails, he decides against the party who is trying to extract a claim
or defense from ambiguous statutory wording.
The procedure is spurious. It might make sense if legislators or draft-
ers of constitutions were committed to the canons of construction, but
they are not, and if in addition the legalist judge-interpreter felt bound
only by substantively neutral canons, such as that the outright expres-
sion of one thought excludes the implication of another, related thought
(the canon known as expressio unius est exclusio alterius); or that the
same word is presumed to mean the same thing throughout a statute; or
that a statute is presumed to contain no surplusage (that is, no words
that do no work), as distinct from substantive canons, such as the rule of
lenity in the interpretation of criminal statutes. Yet Justice Scalia, consis-
tent with his self-characterization as a “faint-hearted” originalist,33 ac-
cepts the rule of lenity without suggesting that it has an originalist pedi-
gree, for example a source in the Constitution.34
The loose constructionist, in contrast to the strict, is a pragmatist.
He wants the enactments he interprets to have sensible consequences,
33. Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review
849, 864 (1989).
34. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 29 (1997).
194 The Model Elaborated

though not necessarily the consequences he would prefer—he is a con-

strained pragmatist (see chapter 9), though he thinks that sensible con-
sequences are usually what the legislators want as well. He tries to cor-
rect for the limitations of their foresight, seeking, in Learned Hand’s
words, to “reconstruct the past solution imaginatively in its setting and
project the purposes which inspired it upon the concrete occasions which
arise for their decision.”35 He agrees with Justice Frankfurter that “un-
happily, there is no table of logarithms for statutory construction. No
item of evidence has a fixed or even average weight. One or another may
be decisive in one set of circumstances, while of little value elsewhere.”36
The pragmatist wants to use the experience gleaned from cases and
other sources of postenactment information to complete the legislative
project. He wants to help the legislators achieve their ends.
Some strict constructionists argue that imaginative reconstruction of
a legislature’s purposes is impossible because there is no such thing
as “collective intent”; there is just the intent of the individual legisla-
tors who vote for or against a statute.37 That is the autistic theory of in-
terpretation. It denies the possibility of meaningful interpersonal com-
munication and agreement, of a “meeting of minds.” The theory is bad
philosophy, bad psychology, and bad law.38 The natural presumption in
interpreting a document is that however many authors it had, it is to be
interpreted as if it were the product of a single mind. The presumption
can be rebutted, but to suggest that one can never meaningfully ask
what Congress was driving at in this or that statutory provision because

35. Learned Hand, “The Contribution of an Independent Judiciary to Civilization” (1942),

in The Spirit of Liberty: Papers and Addresses of Learned Hand 155, 157 (Irving Dilliard ed., 3d
ed. 1960). See also Hand, “How Far Is a Judge Free in Rendering a Decision?” (1935), in id.
at 103.
36. Felix Frankfurter, “Some Reflections on the Reading of Statutes,” in Judges on Judging:
Views from the Bench 247, 255 (David M. O’Brien ed., 2d ed. 2004 [1947]).
37. The position is forcefully argued by the political scientist Kenneth A. Shepsle in his arti-
cle “Congress Is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron,” 12 International Review of
Law and Economics 239 (1992). He commends the following “plain meaning” approach: “In the
circumstances of cases apparently falling in the interstices of a statute, the Court must resist
bringing the case under the statute’s rubric. It may neither generalize the language of a statute,
read intent into its words other than what is explicitly stated, nor forecast what the enacting
majority (or some other majority for that matter) might have ruled. If the plain meaning of the
statute’s language does not cover a circumstance, then the statute is inapplicable.” Id. at 253.
38. Lawrence M. Solan, “Private Language: Public Laws: The Central Role of Legislative In-
tent in Statutory Interpretation,” 93 Georgetown Law Journal 427 (2005).
 Judicial Method: Internal Constraints on Judging 195

Congress is not a collective body is to deny that people can ever share a
purpose.
The problem goes deeper. Interpretation presupposes an intending au-
thor. Suppose one sees scratched in the sand on a beach the words “Call
your mother,” but you realize that the words were formed by the mind-
less action of wind and waves. It would be insane if, realizing this, you
nevertheless called your mother because that was the “plain meaning” of
the words. If there is no intent behind a collectively authored document
such as a statute, there is no occasion for interpretation. Originalists
cannot deny the possibility of collective intent. They depend on there be-
ing such intent. The meaning that the ratifiers attached to the Constitu-
tion, which is the meaning that originalists deem authoritative, was
based on their understanding of what the authors of the document in-
tended.
The danger of loose construction is that it may lapse into shortsighted
pragmatism, ignoring the bad consequences of too cavalier an attitude
toward the written word. A proper choice between the two styles of in-
terpretation, like the choice between rules and standards, which it re-
sembles—which indeed it illustrates—is relative to circumstances, in-
cluding institutional factors such as the different motivations and tools
of courts and legislatures. These issues have engaged the attention of
scholars for many years,39 but as with the choice between rules and stan-
dards there is no closure. Students of public choice, and political con-
servatives generally, being skeptical about the good faith of legislators,
fearing the excesses of democracy, deeming statutes unprincipled com-
promises, and reluctant to help legislators achieve their ends (these
skeptics doubt that most legislation has ends worthy of assistance), deny
that statutes ever have a “spirit” or coherent purposes that might, by
channeling loose construction, limit judges’ discretion to make policy.
They think loose construction debases language as a medium of com-
munication between legislature and court. They point out that to the ex-

39. See, for example, William N. Eskridge, Jr., “Overriding Supreme Court Statutory Inter-
pretation Decisions,” 101 Yale Law Journal 331, 416 (1991); Susan Freiwald, “Comparative In-
stitutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation,” 14 Har-
vard Journal of Law and Technology 569, 574 (2001); Jonathan T. Molot, “Reexamining Marbury
in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statu-
tory Interpretation,” 96 Northwestern University Law Review 1239, 1292–1320 (2002); Cass R.
Sunstein and Adrian Vermeule, “Interpretation and Institutions,” 101 Michigan Law Review 885
(2003).
196 The Model Elaborated

tent that a statute is a product of compromise, a court that interprets the

statute to make it more effective in achieving its ostensible goal may be
undoing the legislative compromise—which might make it more dif-
ficult to enact legislation in the first place given the importance of com-
promise to the legislative process. These are sound cautionary points,
but do not describe the actual practice of strict constructionists. A care-
ful statistical study concludes that “plain meaning is not at all plain, at
least to Supreme Court Justices. They are readily able to find whatever
plain meaning suits their ideological proclivities.”40 They realize that a
court committed to strict construction may make more work for legisla-
tures by never lending them a helping hand. Conservative judges, how-
ever, instead of being troubled by this, rather welcome it.
At the opposite end of the spectrum from the legislation skeptics we
find the likes of Henry Hart and Albert Sacks, who along with Guido
Calabresi and others urge loose interpretation (carried by Calabresi to
the extreme of thinking that courts should be allowed to nullify stat-
utes that have become obsolete). They believe in the public-spiritedness
of legislators, who these scholars think welcome a helping hand from
judges.41 But they underestimate the risk that judges will upset delicate
legislative compromises, substitute their own poorly informed or politi-
cally biased policy judgments for those of better-informed legislators,
and empower legislative factions.
Realists about the limited knowledge that Supreme Court Justices and
other judges bring to many of their cases—judge skeptics as distinct
from legislator skeptics—especially urge judges to hesitate to invalidate
statutory and other official action on the basis of constitutional interpre-
tation, whether strict or loose. They think it presumptuous of the Jus-
tices, who after all are merely lawyers hired by politicians, to consider
themselves competent to take sides on the profoundly contested moral
and political issues involved in disputes over such matters as sexual and
reproductive rights, capital punishment, the role of religion in public
life, the financing of political campaigns, the structure of state legisla-
40. Frank B. Cross, “The Significance of Statutory Interpretive Methodologies,” 82 Notre
Dame Law Review 1971, 2001 (2007).
41. Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making
and Application of Law 1414–1415 (tentative ed. 1958) (now Henry M. Hart, Jr., and Albert M.
Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1378 [William N.
Eskridge, Jr., and Philip P. Frickey eds. 1994]); Guido Calabresi, A Common Law for the Age of
Statutes (1982).
 Judicial Method: Internal Constraints on Judging 197

tures, and national security. They think that courts should intervene in
such sensitive and emotional controversies only if utterly convinced of
the unreasonable character of the act or practice that they are asked to
prohibit in the name of the Constitution.
This is a form of loose construction and standard-based legal reason-
ing, but should not be taken to imply that realists always oppose rule-
based adjudication. Students of economic development, who are realists
with no interest in defending legalism as such, sensibly recommend the
adoption of precise rules of law (which implies strict construction as the
mode of interpretation of statutes, regulations, and other sources of
rules) by backward nations with weak legal infrastructures.42 When law
consists of precise rules, rather than standards, the scope of interpre-
tive discretion is curtailed and judicial corruption and incompetence
therefore held in check, because it is easier to determine whether a
judge is applying a rule properly than whether he is applying a standard
properly.
This is an illustration of a point I made in chapter 3—that in particu-
lar historical circumstances pragmatism may dictate legalism. Another
illustration is Savigny’s proposal that the German states (he was writing
long before Germany became a nation in 1871) adopt the law of ancient
Rome as the law of Germany—a highly formalistic version of Roman
law, moreover.43 Savigny’s legalism may well have been right for his time
and place. As in developing societies today, the urgent need was for
clear, uniform rules that could be applied mechanistically and bind the
different German states together. Holmes’s rejection of Savigny’s legal-
ism44 may well have been right for his time and place, which were very
different from Savigny’s. By Holmes’s time “the American legal system
. . . had the suppleness and enjoyed the public confidence to be able to
adapt legal principles to current social needs without undue danger of
sacrificing legitimacy or creating debilitating legal uncertainty.”45 Thus,
“formalism [legalism] as a decision making strategy in statutory in-
terpretation, or for that matter in any other setting, can be justified or

42. See, for example, Jonathan R. Hay and Andrei Shleifer, “Private Enforcement of Public
Laws: A Theory of Legal Reform,” 88 American Economic Review Papers and Proceedings 398
(May 1998).
43. See Richard A. Posner, Frontiers of Legal Theory, ch. 6 (2001).
44. See Oliver Wendell Holmes, Jr., The Common Law, lects. 5–6 (1881).
45. Posner, note 43 above, at 221.
198 The Model Elaborated

opposed (solely) on the basis of a forward-looking assessment of the

consequences of the competing alternatives.”46 “The debate over inter-
pretive formalism turns, most critically, on the structure of the lawmak-
ing system rather than on claims about the nature of communication,
democracy, or jurisprudential principles.”47
The Continental European judiciary, as we know, tends to be more
legalist than the American. A career judiciary requires performance cri-
teria that can be used to make objective promotion decisions, and the
accuracy of a literal interpretation of a legislative text is easier to evalu-
ate than the soundness of a pragmatic interpretation. Then too, career
judges, having little experience of the world outside the courtroom,
are more comfortable with semantic than with policy-oriented interpre-
tation (though, as I noted in chapter 5, civil law judges cannot avoid oc-
casional policymaking). And parliamentary government, which is the
European form of government, is far more streamlined than presiden-
tial government, and therefore less reliant on judges to supplement leg-
islation. Legalism would not be a responsible strategy for American
judges, given our tricameral legislative system (tricameral because the
veto power makes the President in effect a third house of Congress); our
220-year-old Constitution, whose authors were sages but not seers; our
federal system, which lays federal law confusingly over the legal systems
of 50 different states; and our weak, undisciplined political parties.
Strict construction, along with its textualist-originalist variants, would
place an unbearable information load on our legislatures. It would re-
quire them to be able to anticipate not only every quirky case that might
arise to exploit ambiguities in statutory language but also every fu-
ture change in society (such as the advent of the telephone or the Inter-
net) that might make a statute or constitutional provision drafted with-
out awareness of the change fail to achieve the provision’s aim. Loose
construction, in contrast, shares out the information burden between
legislators and judges. Vague constitutional and statutory provisions
are translated into broad rules by the Supreme Court, then fine-tuned by
the lower courts. Not only are more “legislators” brought into the pic-
ture, but the postenactment legislators—the judges—contribute to the
revisionary process information to which the original legislators, lacking

46. Sunstein and Vermeule, note 39 above, at 921–922.

47. Id. at 925.
 Judicial Method: Internal Constraints on Judging 199

the gift of prevision, had no access.48 Had we more professional, more

disciplined legislative bodies, a constitutional convention in continuous
session, a federal commission to revise statutes, a counterpart to the
Sentencing Commission for every area of federal law, then judges could
take a backseat, as foreign judges do. But none of these conditions for ju-
dicial passivity in interpretation is satisfied.
This analysis will not convince those who so distrust interpretive flex-
ibility that they accuse Blackstone of “radical institutional blindness”49
because he said (repeating a point made by a seventeenth-century le-
gal thinker, Samuel Pufendorf) that a law of Bologna “that whoever
drew blood in the streets should be punished with the utmost severity”
should not be interpreted to make punishable a surgeon “who opened
the vein of a person that fell down in the street with a fit.”50 It would not
convince critics of the French court that, in the face of the emphatic
French commitment to judicial legalism,51 refused to read literally a stat-
ute that, so read, nonsensically forbade the passengers on a train to get
on or off the train when it was not moving.52 Actually, the cases are dif-

48. Thorsten Beck, Asli Demirgüç-Kunt, and Ross Levine, “Law and Finance: Why Does
Legal Origin Matter?” 31 Journal of Comparative Economics 653 (2003). Cf. Franceso Parisi and
Nita Ghei, “Legislate Today or Wait until Tomorrow? An Investment Approach to Lawmaking”
(University of Minnesota Law School, Legal Studies Research Paper No. 07–11, June 14, 2006),
noting the difficulty that legislatures have in determining the optimal timing for the adoption
of new laws, given the need to consider the value of the option of waiting. Loose construction
is one solution to the dilemma.
49. Sunstein and Vermeule, note 39 above, at 892. See also Adrian Vermeule, Judging under
Uncertainty: An Institutional Theory of Legal Interpretation 19–20 (2006). For criticism, see Jon-
athan R. Siegel, “Judicial Interpretation in the Cost-Benefit Crucible” (forthcoming in Minne-
sota Law Review).
50. William Blackstone, Commentaries on the Laws of England, vol. 1, p. 60 (1765). As
Blackstone explained, “The fairest and most rational method to interpret the will of the legisla-
tor, is by exploring his intentions at the time when the law was made, by signs the most natural
and probable. And these signs are either the words, the context, the subject matter, the effects
and consequence, or the spirit and reason of the law . . . As to the effects and consequence, the
rule is, where words bear either none, or a very absurd signification, if literally understood, we
must a little deviate from the received sense of them.” Id. at 59–60 (emphasis in original). He il-
lustrates the point with the Bologna bloodletting statute.
51. On which see, for example, Julius Stone, The Province and Function of Law: Law as Logic,
Justice, and Social Control: A Study in Jurisprudence 149–159 (2d ed. 1961). In fact, French legal-
ism, like American legalism, is more rhetorical than real. See Eva Steiner, French Legal Method,
chs. 3, 4, 7 (2002), and next footnote.
52. Steiner, note 51 above, at 60; Michel Troper, Christophe Grzegorczyk, and Jean-Louis
Gardies, “Statutory Interpretation in France,” in Interpreting Statutes: A Comparative Study 171,
192 (D. Neil MacCormick and Robert S. Summers eds. 1991). “In circumstances where the ap-
200 The Model Elaborated

ferent, because the text of the French statute probably contained a typo-
graphical error.53 The Bolognese statute involved what is far more com-
mon and far more difficult for a legislature to avoid, which is failing to
anticipate and make provision for cases that are within the semantic ex-
tension of a statute but not within its purpose. The extension of a state-
ment commonly exceeds its intended scope because well-understood
qualifications are understood rather than expressed. Suppose you asked
a druggist for something to help you sleep and he gave you a sledgeham-
mer. Literalism can be a firing offense, or even grounds for commitment.
Remember the Olmstead case? As an exercise in strict construction, it
was correctly decided, though no one defends the decision anymore.
Read literally, or for that matter naturally or even historically, the Fourth
Amendment protects your person, house, papers, and effects from being
searched, but not your conversations. Ordinary (that is, nonelectronic)
nontrespassory eavesdropping has never been considered a search or
a seizure. Nor has following a person about or even erecting surveil-
lance cameras on lampposts. It would be unidiomatic to say “the police
searched me by listening to my phone conversations” or “the police
searched my house by listening to my phone conversations.” Electronic
eavesdropping could be said (though only by a lawyer) to “seize” con-
versations, but conversations are not among the things that the amend-
ment protects from intrusion. In order to bring wiretapping and other
electronic eavesdropping within the scope of the Fourth Amendment, a
court has to posit a purpose behind the amendment, and this requires
speculation fatal to the strict constructionist’s desire to banish discretion
from interpretation. For what was the purpose of the amendment? Was

plication of the literal meaning was likely to result in an absurdity, the judge could look at the
legislative intent and ‘rectify’ the legislative provision by means of interpretation . . . Some-
times, in order to keep up with social change, French courts have departed from the literal
meaning of a statute, applying instead a meaning that was not originally intended by the legis-
lator at the time when the statute was passed.” Steiner, above, at 60. For extended discussions
of the absurd-results principle of interpretation, see John F. Manning, “The Absurdity Doc-
trine,” 116 Harvard Law Review 2387 (2003); Veronica M. Daugherty, “Absurdity and the
Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation,” 44
American University Law Review 127 (1994).
53. Statutory drafting errors are not a French monopoly; they are found in American stat-
utes as well and provide a major challenge to the formalist. See Jonathan R. Siegel, “What Stat-
utory Drafting Errors Teach Us about Statutory Interpretation,” 69 George Washington Law Re-
view 309 (2001).
 Judicial Method: Internal Constraints on Judging 201

it just to limit trespasses by customs and other government officers? Or

was it to limit more generally the occasions for and scope of official in-
vestigations? Or did it have both purposes—the narrow and the broad?
Strict constructionists do not, or at least should not, regard these as
questions that judges are permitted to answer. They should applaud
Olmstead and denounce Katz—for Katz is just what legalists deplore: a
legislative decision. The Supreme Court in Katz disregarded the Fourth
Amendment’s words and original purpose in order to bring a novel form
of criminal investigation under the Constitution.
Advocates of strict construction argue that it strengthens democracy
by preventing judges from imposing their policy preferences on society
in the guise of interpretation. The other side of this coin, however, is
that strict constructionists will not intervene to save legislation from be-
ing rendered obsolete or absurd by unforeseen cases (such as that of the
hypothetical surgeon of Bologna) or by changed circumstances. The leg-
islature can always step in and eliminate those results for the future, by
amendment. But at what cost? The legislative process is inertial, legisla-
tive capacity limited, the legislative agenda crowded, and as a result
amending legislation is difficult and time-consuming—it has to be or
legislation would lack durability.54 A neglected point is that if amending
is feasible, it can be used to cure pathologies of loose as well as of strict
construction. Indeed, if amending is feasible, there is no longer a practi-
cal argument for strict construction; its effects on the legislative process
are the same as those of loose construction. But it is more realistic to as-
sume that amending a statute to correct judges’ misinterpretation of it is
often infeasible.
The choice between strict and loose statutory construction (which is
not really a binary choice, since intermediate choices are possible and
indeed attractive55), like the parallel choice between rules and stan-
dards, is full of uncertainty. Nothing in legalism itself can show that the
legalist approach to statutory interpretation—strict construction, or in
some versions textualism or originalism—is the right approach. And not
enough is known about the trade-offs between strict and loose construc-

54. William M. Landes and Richard A. Posner, “The Independent Judiciary in an Interest-
Group Perspective,” 18 Journal of Law and Economics 875 (1975).
55. See, for example, Jonathan T. Malot, “The Rise and Fall of Textualism,” 106 Columbia
Law Review 1 (2006).
202 The Model Elaborated

tion to enable the legalist approach to be endorsed, or for that matter re-
jected (though that is my inclination), on practical grounds. With the
choice between strict and loose construction thus up in the air, judges
must choose on the basis of factors that lie outside the boundaries of
“the law” as it is conceived of by legalists. Although legalists defend
strict construction as the democratic alternative because it limits judicial
legislating, their real motive, one suspects, is hostility to big govern-
ment, a creation primarily of legislation. To impede legislation is hardly
democratic, but that is what legalistic interpretation does. It imposes ar-
bitrary meanings on statutes by reading them literally, and by doing so it
makes legislators work harder to achieve their objectives yet fall short
because of the inertial forces that impede the enactment of legislative
amendments designed to overcome judicial rulings.
Because the correction of absurd results by constitutional amendment
is especially difficult, yet such results would be a frequent consequence
of literal interpretation of so old a document as the Constitution of the
United States, strict construction is especially maladapted to constitu-
tional cases. I illustrated with electronic eavesdropping, but that is just
the beginning. A strict construction of the equal protection clause of the
Fourteenth Amendment is that it forbids affirmative action (unequal
benefits) but not the racial segregation of public schools (mere separa-
tion); of the Sixth Amendment that it requires jury trials in courts-
martial; of the First Amendment that it abolishes the tort of defamation
and forbids the criminalizing of criminal solicitations, the legal protec-
tion of trade secrets, and the censorship of military secrets; of the Sec-
ond Amendment that it entitles Americans to carry any weapon that one
person can operate, including shoulder-launched surface-to-air missiles;
of the Fifth Amendment that it permits evidence obtained by torture to
be introduced in federal criminal trials provided the torture was not con-
ducted in the courtroom itself; of the Eleventh Amendment that it per-
mits a person to sue in federal court the state of which he is a citizen,
though no other state; and of Article I, section 8, that Congress cannot
establish the Air Force as a separate branch of the armed forces or regu-
late military aviation at all. If this is where strict constitutional construc-
tion leads, its adoption would create an agenda of proposed consti-
tutional amendments so long that the amending process would break
down.
Good pragmatic judges balance two types of consequence, the case-
 Judicial Method: Internal Constraints on Judging 203

specific and the systemic.56 A pertinent example of the latter is the dan-
ger of making law too uncertain if judges fail to enforce contracts more
or less as written—that is, fail to interpret contractual language strictly.
It can be argued that a similar undermining is likely to be the conse-
quence of loose construction of statutes, so that a policy of strict con-
struction with only a narrow exception for interpretations that produce
palpably absurd results is superior, all things considered, to a general
policy of loose construction. This would be an example of preferring
rule plus exceptions to standard, a common choice in law. One could
even favor strict construction of contracts and loose construction of stat-
utes and the Constitution, just as one could favor strict construction un-
der one type of legal and political regime and loose construction under
another. The point is only that legalism no more requires strict construc-
tion than it requires a law made up entirely of rules rather than of rules
and standards. These are choices that entail the exercise of legislative-
like judicial discretion.
56. Richard A. Posner, Law, Pragmatism, and Democracy, ch. 2 (2003). For a good discus-
sion of the pros and cons of pragmatic interpretation, see John F. Manning, “Statutory Pragma-
tism and Constitutional Structure,” 120 Harvard Law Review 1161 (2007).
8

Judges Are Not Law Professors

The external constraint on judicial behavior that is most compatible

with a judiciary as independent as our federal judiciary is academic criti-
cism, since it is noncoercive. It is potentially a powerful constraint be-
cause judges care about their reputation, care about being (and not
merely being thought to be) “good” judges, respect the intellect and spe-
cialized knowledge of first-rate academic lawyers, and by virtue of their
very independence are open to a wide array of influences, including
those exerted by criticism, that would have little impact were judges
subject to the powerful incentives and constraints of employees who
lack the independence of a federal judge. Actually a better word than
“criticism” in this context is “critique.” Judges would benefit from praise
that indicated where they were doing a good job as well as from criti-
cism, and judges who were not praised would learn from the praise of
others where they were falling short.
Yet academic critique of judges and judging has little impact these
days on judicial behavior.1 This is not to say that academic scholarship
has little impact on law, including the law made by judges in their legis-
lative role. But my interest in this book is not in how law professors cre-
ate knowledge that finds its way into judicial opinions and hence into

1. For an acknowledgment and interesting discussion of this point, see Sanford Levinson,
“The Audience for Constitutional Meta-Theory (or, Why, and to Whom, Do I Write the Things
I Do?),” 63 University of Colorado Law Review 389 (1992). See also Barry Friedman, “The
Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship,” 95 North-
western University Law Review 933, 953 (2001); Robert Post, “Legal Scholarship and the Prac-
tice of Law,” 63 University of Colorado Law Review 615 (1992).

204
 Judges Are Not Law Professors 205

the law; it is in the law professor’s role as an evaluator of judicial perfor-

mance whom judges take seriously.
There are two reasons that academic criticism does not much affect
judicial behavior. One is that although judges indeed care about whether
they are doing and are thought by certain others (other judges, for ex-
ample) to be doing a good job, they do not care greatly what law profes-
sors think of them. The other reason is that law professors are not much
interested in evaluating individual judges, except Supreme Court Jus-
tices—who are the last judges to care about how they are thought of in
the groves of academe. Beneath these specific reasons for the ineffec-
tuality of academic critique of judicial performance is a deeper one—
the alienation of the elite law professor from legal practice, including
judging.2
Judicial insensitivity to academic criticism derives in part from the
differences between judges and professors in working conditions, incen-
tives, constraints, selection, outlook, and social role. Many judges think
that academics do not understand the aims and pressures of judicial
work and that as a result much academic criticism of judicial perfor-
mance is captious, obtuse, and unconstructive. This sense is shared even
by appellate judges, engaged in the quasi-scholarly work of opinion
writing, including appellate judges appointed from the professoriat.
Apart from the courts of appeals for the Federal Circuit and to a lesser
extent the District of Columbia Circuit, the jurisdiction of the federal
courts of appeals ranges over virtually the entirety of federal civil and
criminal law, and, by virtue of the federal diversity jurisdiction and fed-
eral habeas corpus for state prisoners, over virtually the entirety of state
law as well, plus bits of foreign and international law.3 No judge of such
a court can be an expert in more than a small fraction of the fields of law
that generate the appeals that he must decide, or can devote enough
time to an individual case to make himself, if only for the moment
(knowledge obtained by cramming is quickly forgotten), an expert in
the field out of which the case arises. Unlike the Supreme Court, more-

2. See Harry T. Edwards, “The Growing Disjunction between Legal Education and the Legal
Profession,” 91 Michigan Law Review 34 (1992), and, for an amusing anticipation, William L.
Prosser, “The Decline and Fall of the Institute,” 19 Journal of Legal Education 41 (1966).
3. The principal exceptions to the jurisdiction of the regional courts of appeals are patent
law and probate and domestic relations law, though the exception for probate and domestic re-
lations is only partial. See, for example, Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).
206 The Model Elaborated

over, the courts of appeals must decide all the dispositive issues pre-
sented by a case, however many there are, and a single case may present
issues in several different fields of law.
A judge is a generalist who writes an opinion under pressure of time
in whatever case, in whatever field of law, is assigned to him. Lack of
time and lack of specialization are not problems for the law professor.
He writes an article on a topic of his choice in the area of his specialty at
a pace that he is comfortable with. He strives to make an original contri-
bution. In contrast, lack of originality is no problem for the judge. He
must write the opinion assigned to him whether or not he has an origi-
nal thought about any of the issues in the case. Especially if he is the pre-
siding judge he may have some choice of which cases to write the major-
ity opinion in, but it is a choice only among the cases that he has been
chosen by random assignment to hear as part of a randomly chosen
panel of the judges of his court. A law professor does not have to write
25 articles a year (roughly the current minimum number of opinions
published by a federal court of appeals judge; some publish many more,
and all are responsible for a number—invariably a larger number—of
unpublished opinions) on topics not of his choice. The professor can,
without losing his academic standing, write just one or two articles a
year on the one or two topics about which he has an original thought.
But he is expected to write the articles himself, whereas most judicial
opinions are drafted by law clerks, though edited, and sometimes exten-
sively rewritten, by the judge.
It is not just that the judge, unlike the professor, cannot be expected
to have an original thought in every case because of the volume of cases
and the lack of choice and of specialization; originality is far less val-
ued—and valuable—in judicial opinions than in academic books and ar-
ticles. Stability and continuity are highly valued qualities in any legal
system, and judges (in part for that reason) are hemmed in, though not
nearly so tightly as legalists believe, by precedents and other authorita-
tive texts. Their freedom of action is also hampered by the need to com-
promise with other judges who may be less adventurous than they, in or-
der to command a majority. And this point highlights the difference in
the audiences for the two types of document. The primary audience for
academic writing consists of other academics. The appellate judge, writ-
ing what he hopes will be the majority opinion, is writing in the first in-
stance for his fellow judges, with at least a glance over his shoulder at
 Judges Are Not Law Professors 207

the Supreme Court, with a sense of wanting to be persuasive to judges of

other courts who may someday be faced with a similar case, and with a
desire to provide guidance to the bar. Academics are at the periphery of
his concern.
Deciding a case, moreover, is judging a contest, though, pace Chief
Justice Roberts, it is not like umpiring a baseball game. A contest, a dis-
pute, does not have the form of an article topic, even when the topic has
a binary form. A law review article might take a position pro or con
whether intellectual property rights have been construed too broadly
and should be cut back. But the abstractness of such an issue would set
it apart from a dispute over whether the publication of an unauthorized
photograph of a copyrighted Beanie Baby (a “soft sculpture” in copy-
right jargon) is a “fair use” when the photograph is part of a guide for
collectors of Beanie Babies.4 The judge is wont to ask himself in such a
case what outcome would be the more reasonable, the more sensible,
bearing in mind the range of admissible considerations in deciding a
case, which include but are not exhausted by statutory language, prece-
dents, and the other conventional materials of judicial decision making,
but also include common sense, policy preferences, and often much else
besides.
One can imagine a law professor’s article on the proper scope of intel-
lectual property rights that would have a similarly pragmatic, under-
theorized, grab bag character. Indeed, there was a time—a time when
the various branches of the legal profession, including the academic and
the judicial, were closer to each other than they are today—when the
typical law review article was of that character. Law professors used to
identify primarily with the legal profession and only secondarily with
the university. Hired after several years of practice, on the basis of evi-
dence (often based largely or even entirely on performance on exams as
a law student) of possessing superlative skills of legal analysis, the law
professor was expected to be a superb lawyer whose primary responsi-
bility would be to instruct generations of law students so that they
would become good, and some of them superb, lawyers. He instructed
them by precept but also by example, by being a role model, and the role
was that of a practicing lawyer despite the limited practical experience
of most of the professors. The professor’s scholarly work tended to be ei-

4. Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002).
208 The Model Elaborated

ther pedagogical, as in the editing of casebooks, or of direct service to

the practicing bar and the judiciary, as in the writing of legal treatises, ar-
ticles on points of law, and contributions to projects of legal reform
exemplified by the American Law Institute’s restatements of law.
It was an era, unlike today, in which professors at elite law schools
worked closely with judges on the problems of ordinary courts (profes-
sors at those law schools were active in the American Law Institute,
along with prominent judges such as Cardozo and Hand, and the In-
stitute’s principal focus was the common law5), not the U.S. Supreme
Court. It was an era in which judges were among the intellectual lead-
ers of the legal profession, fully on a par with and highly respected by
law professors. Think of Holmes, Brandeis, Cardozo, Frankfurter, Hand,
and, at the end of the era, Henry Friendly. What judges such as these
said about judging, as about specific legal issues, was taken as seriously
by professors as what other professors said, and, to a degree anyway, vice
versa. The legal realists of the 1920s and 1930s, and even the legal pro-
cess school of the 1950s, had a judicial as well as an academic audience.
There was even then a gap between the judiciary and the professoriat,
well illustrated by Henry Hart’s “time chart of the Justices” (see chapter
10). But it has widened since the 1960s—that watershed decade in mod-
ern American history. By the late 1960s the traditional model of aca-
demic law that I have described was almost a century old and ripe for
challenge. Challenges came from two directions, which though opposite
turned out to be complementary in their effect on the traditional model.
One, the direction from social science, and in particular from econom-
ics, complained that the model failed to articulate concrete social goals
for the law and to test legal doctrines against them. It could not tell
judges and legislators when, for example, the rule of tort liability should
be negligence and when strict liability; or how to decide when a land use
should be deemed a nuisance, when a preliminary injunction should be
granted and when denied, when solicitations by police to commit a
crime should be deemed entrapment, whether a rescuer of a lost item
should have a legal claim to the reward posted by the owner though un-
aware of the offer of the reward, or whether spendthrift trusts should be

5. On the decline of the American Law Institute, see Kristen David Adams, “Blaming the
Mirror: The Restatements and the Common Law,” 40 Indiana Law Review 205 (2007); Adams,
“The Folly of Uniformity? Lessons from the Restatement Movement,” 33 Hofstra Law Review
423 (2004).
 Judges Are Not Law Professors 209

allowed because they reduce, or forbidden because they increase, the

likelihood of bankruptcy. (The list can be extended indefinitely.) Too of-
ten decisions were based on invocations of hopelessly vague words such
as “fairness” and “justice.”
The second challenge was inspired by the left-wing politics that helped
to define the late 1960s and early 1970s. The challengers complained
that the traditional model was a mask for decisions reached on base po-
litical grounds. The critical legal studies movement and its offshoots res-
urrected the legal realism of the 1920s and 1930s in a form at once more
strident and intellectually more pretentious, and rejected the legal pro-
cess school of the 1950s that had sought to reconcile legal realism with
the conventional model through the concept of neutral principles.
These challenges to the traditional conception of the law professor’s
vocation so far succeeded as to bring about a fundamental change in the
character of legal teaching and scholarship and the method of recruit-
ment into academic law. From the challenge mounted by social science
came unprecedented emphasis on basing legal scholarship on the in-
sights of other fields, such as economics, philosophy, and history. From
the challenge mounted by the left came a reinforcing skepticism about
the capacity of the traditional model of legal scholarship to yield cogent
answers to legal questions.
The traditional model was largely buried in these twin avalanches, at
least in the elite law schools. And with its burial, interest in hiring the
masters of the traditional skills of lawyer and judge to teach law waned.
The knack (and it is a knack—it is not something that even every very
bright person can acquire) of reading cases and statutes creatively, the
bag of rhetorical tricks and the professional demeanor that mark the le-
gal insider, and an ineffable sense (“judgment”) of just how far one can
go as a judge in changing the law (or as a practicing lawyer in advocating
a judicial law change) to keep it abreast of changing social and economic
conditions, cannot be the entirety of the modern lawyer’s or judge’s pro-
fessional equipment, and their inculcation cannot be the entirety of a
first-rate modern legal education. The law has become too deeply inter-
fused with the methods and insights of other fields—and law schools
still have a long way to go to overcome the shameful aversion of most
law students to math, statistics, science, and technology. Maybe at the
law schools that have the brightest students only half of the instruction
should be in the traditional mold. But to reach that level those law
210 The Model Elaborated

schools would have to start hiring teachers who identify more strongly
with the practicing profession than they do with academia.
The modern style of academic law, when set against the style, which is
not modern, of deciding cases, leaves a gap in the legal profession. In a
system of case law, which is the dominant American system even in pri-
marily statutory fields, the principles and rules of law are rarely found
clearly stated in written codes. They must be teased out of the codes and
out of strings of precedents. Law is more often inferred than positive
(i.e., posited), and inferred law is “unwritten” in the significant sense
that it is constructed or reconstructed by judges, lawyers, and scholars
out of scattered, sometimes inconsistent, and often ambiguous, incom-
plete, or poorly informed materials, mainly judicial opinions. The messy
work product of judges and legislators requires much tidying up, syn-
thesis, analysis, restatement, and critique. These are intellectually de-
manding tasks, requiring vast knowledge and the ability (not only brains,
knowledge, and judgment but also Sitzfleisch) to organize dispersed,
fragmentary, prolix, and rebarbative materials. Though these tasks lack
the theoretical ambition of scholarship in more typically academic fields,
they are vital to the legal system and of greater social value than much of
today’s esoteric interdisciplinary legal scholarship.
They are vital because judges are deciding cases rather than attempt-
ing to formulate a code.6 In explaining a decision they will typically state
a rule in the hope of providing guidance for future cases and subsume
the case under it. But they cannot see the future clearly, in part because a
case system concentrates the judge’s attention on the case at hand. So
rules keep having to be refined and reformulated as new cases arise.
Sometimes they are recast as standards, sometimes precipitated out of
standards, and sometimes festooned with exceptions. Early on, for ex-
ample, the English royal courts held that a threatening gesture is tor-
tious (an assault) even if the person threatened is not actually struck by
the threatener.7 That sounds like a simple, clean rule to guide the deci-
sion of future cases. Then came a case in which there was again a threat-
ening gesture: the defendant in an angry confrontation with the plaintiff
placed his hand on his sword—but at the same moment he negated the
threat by stating, with careful use of the subjunctive, that “if it were not
6. See A. W. B. Simpson, “Legal Reasoning Anatomized: On Steiner’s Moral Argument and
Social Vision in the Courts,” 13 Law and Social Inquiry 637 (1988).
7. I. de S. and Wife v. W. de S., Y.B. Liber Assisarum, 22 Edw. 3, f. 99, pl. 60 (1348 or 1349).
 Judges Are Not Law Professors 211

assize-time, I would not take such language from you.” The court ruled
for the defendant,8 thus indicating that the original statement of the as-
sault rule had been too broad. This is an example of legal progress
through the distinguishing of prior cases—in other words through re-
fining rules on the basis of knowledge generated by new, unforeseen
disputes.
Judges try to keep track of old cases and reformulate the rules of deci-
sion making as tested by new, unanticipated ones. But a mature or com-
plete rule is more likely to have been reconstructed from a line of cases
than to be found fully and precisely stated and explained in the latest
case in the line. It falls to the law professors to clean up after the judges
by making explicit in treatises, articles, and restatements the rules im-
plicit in the various lines of cases, identifying outliers, explicating policy
grounds, and charting the path of future development. This type of
scholarship resembles appellate judging because it is the kind of thing
one could imagine the judges themselves doing had they the time and
the specialized knowledge. Indeed, judges in their opinions sometimes
try to do a preliminary tidying up of an area of law by restating a rule or
standard in a way that clarifies, unifies, and perhaps modestly improves
the rule implicit in a line of cases.
The type of legal scholarship that I am discussing is no longer in
vogue at the leading law schools. No longer are the law professors at
those schools appellate judges manqué, or überjudges who codify the
implicit judge-made rules, giving them a fixity, an amplitude, and a clar-
ity that an implicit rule could not achieve. They influence law, maybe
more so than their more conventional predecessors. But they do so not
by shaping the timbers rough hewn by judges but instead by inviting
judges’ attention to new considerations to take into account in deciding
difficult cases. Typically the invitation is indirect. The professors are not
writing for judges but for other law professors and to a lesser extent for
law students. Still, there is a trickle-down effect, operating through law
clerks, sophisticated members of the bar, and judges who are former law
professors.
The trickle-down effect is important, for reasons central to this book.
In difficult cases, which are so mainly because they are cases in which
the orthodox materials of legal decision making cannot produce a satis-

8. Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669).

212 The Model Elaborated

factory decision (sometimes cannot produce a decision, period), judges

are perforce reliant on other sources for their decision. They must find
something to move them off dead center, and the modern law professor
can help them in their quest. In a number of areas of law, economic anal-
ysis has helped move judges from reliance on instinct and semantics to
something closer to cost-benefit analysis. This has produced a gain in
precision and concreteness that should actually warm a legalist’s heart
because it reduces the area in which judges make decisions in a fog of
emotion and undisciplined intuition.
But apart from the handful of professors who, as I mentioned in chap-
ter 5, are trying to develop quantitative measures of judicial perfor-
mance, not many law professors at the elite schools are interested in do-
ing critiques of the courts, other than law professors who write about
the Supreme Court, typically with reference to the Court’s constitu-
tional decisions. Like the Court itself when it is deciding constitutional
cases, academic commentary on constitutional decisions is highly politi-
cized—which makes it especially easy for the Justices to ignore. Law
professors may express strong reservations about judicial performance
in particular fields dominated by the lower courts, such as intellectual
property, but it is the field that fascinates them, not what it might be
about the judicial institution that is leading judges astray.
Michael Dorf, a well-known professor of constitutional law at Colum-
bia, accusing the new Supreme Court majority of “assert[ing] fidelity to
the prior precedents and then ruling the other way,” “register[s] a paro-
chial complaint against this particular brand of what is charitably called
minimalism: It’s going to make it hard to train new students about what
it means to reason from or even follow precedent.”9 No, it’s going to be
hard to keep on teaching constitutional law as if the Justices took prece-
dent as seriously as lower-court judges and common law judges do. It’s
going to be hard to keep pretending that Justices are like other judges
rather than like other legislators. It is high time some realism about
judging was injected into the teaching of law. The appointment of politi-
cal scientists to law faculties—a rarity today—deserves serious consider-
ation.
I have suggested that law professors have been growing apart from
9. “Is It Possible to Teach the Meaning of Precedent in the Era of the Roberts Court?” Dorf
on Law, July 9, 2007, [Link]
(visited Sept. 24, 2007).
 Judges Are Not Law Professors 213

judges, and Dorf’s surprise at discovering that Supreme Court Justices

play fast and loose with precedent might be taken as a sign of this (for
was there ever a time when Justices were scrupulous about precedent?).
In this regard there is an illuminating contrast between two works on
judging written by law professors a quarter of a century apart. Karl
Llewellyn’s book The Common Law Tradition: Deciding Appeals, pub-
lished in 1960, is a legal realist summa. A 565-page study of state appel-
late courts, which tries with some success to reconcile legal realism with
the undoubted fact that there is a fair degree of predictability in the com-
mon law, Llewellyn’s book can be seen as the culmination of a realist tra-
dition that goes back to Holmes and before him to Bentham. I will say
more about this tradition, gathering together the scattered remarks I
have made so far in this book about legal realism, in the next chapter.
Suffice it to say that Llewellyn is on the same wavelength as most judges.
With Llewellyn’s book compare Duncan Kennedy’s article “Freedom
and Constraint in Adjudication: A Critical Phenomenology,”10 published
in 1986. The subtitle is a clue to the difference that a quarter century had
made in academic law. Kennedy imagines himself a judge torn between
“law” that favors the granting of an injunction against striking workers
and the judge’s sense of “social justice” that impels him to search for
ways in which he can deny the injunction. Judges do not think the way
he imagines them to (though they sometimes say they do). They do not
think, “This is an awful rule but it is the law, so I have a dilemma—can I
get around it?” The business of judges is enforcing the law. If you do not
like enforcing the law, you are not going to be a happy judge, which
means you are not going to self-select into the judiciary, or if you some-
how find yourself a judge (maybe you didn’t know what being a judge
was like or what you are like), you are likely to quit.
When a judge does bend a rule to avoid an awful result, he does not
feel that he is engaging in civil disobedience;11 he thinks the rule does
not really compel the awful result. He will have rejected, probably un-
consciously (few judges think a great deal about jurisprudential ques-
tions such as “What is law?”), the crabbed view of “law” that would if

10. Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenol-

ogy,” 36 Journal of Legal Education 518 (1986).
11. Not usually at any rate; for American judges do sometimes engage in civil disobedience,
as argued in Paul Butler, “When Judges Lie (and When They Should),” 91 Minnesota Law Re-
view 1785 (2007).
214 The Model Elaborated

adopted make much of what American judges do be classified as lawless.

Oblivious to the tension that Professor Kennedy assumes to exist be-
tween “law” and “social justice,” judges no more identify with Ken-
nedy’s imagined judge than they do with Dworkin’s fictional “Judge Her-
cules.” This is a damaging criticism of an article about the conscious
mind of the judge—an essay in phenomenology, the study of conscious
experience from the first-person perspective.
Should it be objected that Duncan Kennedy is outside the academic
mainstream, I retreat to Adrian Vermeule, an indisputably mainstream
colleague of Kennedy’s at the Harvard Law School. I mentioned in chap-
ter 7 his characterization of Blackstone’s purposive interpretation of stat-
utes as “institutional blindness.” Even legalists such as Justice Scalia ac-
cept the “absurdity exception” to the strict construction of statutes.12
Vermeule does not. He is concerned that false positives (deeming a stat-
utory provision absurd when it is not) may outweigh false negatives (en-
forcing an absurd provision).13 He urges judges to abandon purposive
interpretation because of this possibility and offers the reassurance that
prosecutorial discretion, jury lenity, the pardon power, and other nonju-
dicial responses to an absurd statutory interpretation can protect us ade-
quately. I find this unconvincing. Let me give an up-to-date example
why. The Child Pornography Prevention Act of 1996, which forbids
the knowing possession of child pornography,14 contains no exception
for the knowing possession of such pornography by law enforcement
officers who seize it for use in prosecuting child pornographers and
maintain possession of it until the prosecution is complete, whereupon
possession passes to the keepers of judicial archives. According to
Vermeule’s theory of statutory interpretation, the Act could properly

12. See, for example, Green v. Bock Laundry Machine Co., 490 U.S. 504, 527–528 (1989)
(Scalia, J., concurring); City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S.
424, 449 n. 4 (2002) (Scalia, J., dissenting); Antonin Scalia, “Judicial Deference to Administra-
tive Interpretations of Law,” 1989 Duke Law Journal 511, 515 (1989); John F. Manning, “The
Absurdity Doctrine,” 116 Harvard Law Review 2387, 2391, 2419–2420 (2003). For other judi-
cial endorsements of the doctrine, see, for example, Lamie v. United States Trustee, 540 U.S.
526, 534 (2004); United States v. American Trucking Associations, Inc., 310 U.S. 534, 543–544
(1940); Krzalic v. Republic Title Co., 314 F.3d 875, 879–880 (7th Cir. 2002); United States v.
Aerts, 121 F.3d 277, 280 (7th Cir. 1997). Professor Manning himself rejects the doctrine, but
reaches many of the same conclusions (including Blackstone’s concerning the Bolognese sur-
geon’s case) as those who accept it. See, for example, Manning, above, at 2461–2463.
13. Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpreta-
tion 57–59 (2006).
14. 18 U.S.C. § 2252A(a)(5)(B).
 Judges Are Not Law Professors 215

be read to make all these “knowing possessors” guilty of violating the

Act and thus subject to the Act’s maximum punishment of 10 years in
prison. Of course the prosecution of any of the law enforcers would be
unlikely, though not out of the question; for example, the government
might suspect, without being able to prove, that one of the investigating
officers had stolen some of the pornography from the U.S. Attorney’s of-
fice in the course of the prosecution. Yet the logic of Vermeule’s theory is
that if any of these “possessors” were ever asked on an employment
form whether he had committed a felony, he would be lying if he failed
to say that he had. If this is where Vermeule’s theory leads, as it appears
to, no judge will follow him there.
Vermeule presents no evidence that the number of false positives
(whether weighted by the likelihood of legislative correction or by some-
thing else, or unweighted)—cases in which a court errs in thinking that
the literal reading of some statutory provision is absurd—outweighs
the number of false negatives (similarly weighted). American judges
have been engaged in purposive interpretation since before there was a
United States. There is no basis for thinking it has produced worse re-
sults than mindless literalism would have produced—the kind of literal-
ism that would condemn the surgeon in Bologna or the prosecutor in a
child pornography trial for possessing pornographic evidence. Statutes
often are made overinclusive in order to stop up loopholes. To avoid
overreach, the legislature leaves the task of fine-tuning its statutes to
judges, and not just to jurors and executive branch officials.
Judges have to be given a better reason to change course 180 degrees
than Vermeule gives them. Either he has no insight into what persuades
judges, or, more likely, though his book urges a radical change in judi-
cial behavior, this is just a rhetorical trope and judges are not actually a
part of his intended audience, which is limited to other professors, who
delight in paradox.
Lawyers, legislators, judges, and others seriously engaged with judi-
cial activity, including law professors of the old school, take the interpre-
tive medium—the judiciary—as it is and adjust their arguments, regula-
tions, and so forth to it. For it is what it is, and is unlikely to change at
the urging of professors, or of anyone else for that matter. Academics
who are not seriously engaged with the judiciary urge judges to change
by adopting this or that approach, and usually it is an approach designed
to clip judges’ wings. Judges are not interested in having their wings
clipped, but will happily adopt restraintist approaches as rhetorical tools
216 The Model Elaborated

to persuade others that what looks like judicial assertiveness is obedi-

ence. Academics who are serious about wanting judges to change have
to appeal to their self-interest. To tell judges, as Vermeule in effect does,
that they are so dumb that they cannot even administer the absurdity ex-
ception to literal interpretation, and so should give it up, will not strike a
responsive chord. It perfectly illustrates the contemporary alienation of
the elite academy from the judiciary.
Academics have pointed out consequences of judicial decisions that
even not-so-dumb judges did not understand; entire fields of law, such
as antitrust law, trust investment law, and conflict of laws, have changed
at the urging of law professors and other academics, mainly economists.
But to change judges’ basic outlook on judging rather than specific doc-
trines that they administer would require changing the judicial environ-
ment—the structure of incentives and constraints that influence judicial
behavior. To achieve such change academics would have to address their
arguments to the interests of the persons who manage the institutions
that can alter the judicial environment, such as Congress, the White
House, and the Department of Justice. Lecturing judges on their limita-
tions will not have any effect.
The legal academy has been growing apart from the judiciary for a rea-
son I have not yet mentioned—the growth of specialization in academic
law. American judges are still generalists, but law professors increasingly
are specialists. This is partly a result of the growth in size of the legal
professoriat, because the larger a market (in this case the market for le-
gal scholarship), the more room there is for specialization. It is more the
result of the growing intellectual sophistication of law professors, which
in turn is related to increased recognition that the social sciences, along
with humanities such as history and philosophy, hold many of the keys
to understanding and improving the legal system. And therefore the
growing apart of the academy and the judiciary since the 1960s, though
it has retarded empathy and mutual understanding, need not emasculate
academic criticism of judges. This is shown not only by the prolifera-
tion of social scientific theories of judicial behavior, canvassed in chap-
ter 1, but also by the quantitative literature on evaluating judicial perfor-
mance—a form of critique, central to the analysis of judicial behavior
and hence to this book, that would not have occurred to the traditional
legal academic.15 But recall its numerous shortcomings: counting cita-
tions provides a measure of influence rather than of quality; adjustments
must be made for different courts, different length of service, and so
 Judges Are Not Law Professors 217

forth that affect a judge’s ranking independent of his quality; combining

various quantitative measures to create a composite evaluation requires
an arbitrary weighting of the different measures; rankings are merely or-
dinal measures (if, for example, the distance between number 1 and
number 100 is slight, no specification of rank within that range will con-
vey useful information); and ranking may induce undesirable behavioral
changes by the persons ranked.
The limitations of quantitative measures of judicial performance high-
light the need for qualitative assessments. It is remarkable how rare they
are—which casts further light on the contemporary alienation of the
academy from the judiciary. Of course law professors express agreement
or disagreement with particular decisions, but that is different from eval-
uating a judge’s overall performance, and it tends to fall on deaf ears be-
cause of the judges’ sense that law professors do not understand them.
Judicial biographies attempt critique, but their emphasis tends to be on
producing a narrative of a judge’s career and excavating the details, espe-
cially the piquant details, of his personal life—and these are to one side
of his judicial failures or achievements.16 If I am right in thinking that
the judges in our system have a large measure of discretion, the exercise
of which is bound to be influenced by personal experiences, character
foibles, and so forth, biographical details may help to explain a judge’s
decisions. But that too is to one side of evaluating his performance.
Noting that two judges disagreed frequently because they had different
intuitions as a result of having different experiences, temperaments, and
so on does not reveal which judge did better work, though it can provide
insights into influences on a judge’s decisions.
If academic critique is to alter judicial behavior, we need critical stud-
ies of judges,17 as distinguished from biographies18 on one side and

15. An exception, though not a happy one, is Hart’s “time chart of the Justices.” See chap-
ter 10.
16. On the limitations of judicial biographies, see Richard A. Posner, Law and Literature
357–377 (revised and enlarged ed. 1998).
17. See id. at 375–377. I attempted such a study in my book Cardozo: A Study in Reputation
(1990). See also my article “The Learned Hand Biography and the Question of Judicial Great-
ness,” 104 Yale Law Journal 511 (1994). There are, of course, other such studies. See, for exam-
ple, Ben Field, Activism in Pursuit of the Public Interest: The Jurisprudence of Chief Justice Roger J.
Traynor (2003); Robert Jerome Glennon, The Iconoclast as Reformer: Jerome Frank’s Impact on
American Law, ch. 5 (1985).
18. Or rather from most biographies. Andrew Kaufman’s 735-page biography of Cardozo
provides a comprehensive and convincing assessment of Cardozo’s judicial opinions. Kaufman,
Cardozo, chs. 12–22 (1998).
218 The Model Elaborated

quantitative performance measures on the other. The most illuminating

kind of critical study would compare the judge’s opinion in some nota-
ble case with the opinion of the lower-court judge, the record of the
case, and the lawyers’ briefs and oral arguments, along with any internal
court memoranda written by the judge, his colleagues, or his or their
law clerks. The aim would be to determine the accuracy and complete-
ness of the judge’s opinion; whether it was scrupulous in its use of prece-
dent; the value it added to the briefs and arguments and the contribu-
tions made to the opinion by law clerks and other judges, and thus the
opinion’s originality; and what if anything it added to academic under-
standing. The interactions between the judge and his colleagues would
be an important focus of study, for, as in team sports, a judge’s perfor-
mance can be decisively affected by his colleagues: Are they supportive
or competitive? Do they nitpick his opinions or make helpful sugges-
tions? Is he treated fairly by the opinion-assigning judge? Are his col-
leagues on the same political and methodological wavelength as he is?
To what extent are his opinions really a group product?
A series of critical judicial studies would yield insights into the meth-
ods as well as the quality of the judge. A study expanded to consider
judges serving on the same court at approximately the same time, and
thus correcting for court-specific and time-specific differences between
judges, would further sharpen judicial evaluation.
There are fruitful possibilities for combining quantitative assessments
of judges with critical studies. Being unschooled in statistical methodol-
ogy, judges are skeptical about quantitative measures of judicial perfor-
mance. When they see a judge whom they do not recognize as one of the
most distinguished members of the judiciary being ranked high by such
a measure, they are more likely to reject the measure than to revise their
opinion of the judge. A useful project would be to compare qualitative
and quantitative assessments and seek to explain any discrepancies by a
critical study of the opinions of judges whose quantitative and qualita-
tive assessments differ substantially. We would gain insight into the
strengths and limitations of the quantitative assessments.
Ours remains a case law system, and judges are central players in such
a system. But because few law professors are interested any longer in try-
ing to understand what makes judges tick or in trying to improve the ju-
dicial ticker—except in the case of Supreme Court Justices—academic
discussion of judicial opinions rarely even identifies the judges whose
 Judges Are Not Law Professors 219

opinions are being discussed, as if to say that legalism reigns and judges,
being in effect just calculating machines, are fungible. Academic critique
thus perpetuates a false notion of judicial behavior. This disserves the
bar as well as the judiciary. Law students do not learn much about
judges (most law teachers do not reveal to students the extent to which
the cases the students read in casebooks are ghostwritten by law clerks).
As a result, few lawyers, apart from those who have clerked for judges,
or at least for those judges who are open and candid with their clerks,
know how best to brief and argue cases.
Academic lawyers are terrific at taking apart the formal grounds of a
judicial decision, and those are the grounds that take up most of the
space in most opinions. But the academics have (or express) little under-
standing of how cases are actually decided, where the judges who de-
cided a case were coming from, and what really made them alter existing
doctrine as distinct from what they said made them change it. The aca-
demic emphasis on the formal grounds of a decision conveys to law stu-
dents and the bar the impression that every judge is a thoroughgoing
legalist who can therefore be “reached” only by ceaseless iteration of
legalist slogans such as “plain meaning” and by barrages of case cita-
tions. Misled by the legalistic style of judicial opinions—mistaking style
for substance, the logic of exposition for the logic of the decision itself—
and unaided by a realistic scholarly literature on judicial decision mak-
ing, lawyers tend in briefing and arguing cases to stop with the language
of statutes and cases. Old-style law teaching adopted the standpoint of
the litigating lawyer and so taught the student agility in argument, how
to clear away the debris of precedent, and how to interpret legal texts
imaginatively, because if you’re litigating you have to master these some-
times dark arts. But the old-time teachers offered nothing in place of the
debris; they did not teach policy. Modern teaching supplies the sub-
stance missing from the old style, but downplays the debris-clearing
function, and as a result students are too respectful of precedent and
statutory language. Nor can economic talk be automatically ported to
the courtroom; students sense this but are not given a rhetoric in which
to feed economic policy to hungry judges.
A sense of the audience is the key to rhetorical effectiveness, and so
the key to effective appellate advocacy is the advocate’s imagining him-
self an appellate judge. If he does that he will see immediately that ap-
pellate judges labor under the immense disadvantage of having very lit-
220 The Model Elaborated

tle time to spend on each case and, in addition, of lacking specialized

knowledge of most of the cases that come before them. The judges are
badly in need of the advocate’s help, yet the working assumption of most
of the lawyers who argue before appellate courts is that the judges have
the same knowledge and outlook as the lawyers.
Rarely is it effective advocacy to try to convince the judges that the
case law compels them to rule in one’s favor. For if that were so, the case
probably would not have gotten to the appellate stage (unless it is a
criminal case—criminal cases tend to be appealed regardless of the merit
of the appeal, because normally the appellant is not bearing the cost of
the appeal). And so the second-biggest mistake that appellate advocates
make, after exaggerating how much the judges know about, or are will-
ing to devote time to learning about, the circumstances behind the ap-
peal, is to think they can win by rubbing the judges’ noses in the prece-
dents. In a case that is not controlled by precedent, the task of the
advocate is to convince the judges that the position for which he is con-
tending is the more reasonable one in light of all relevant circumstances,
which include but are not exhausted in the case law, the statutory text,
and the other conventional materials of legal decision making.
The most effective method of arguing such a case, as should be clear
from the discussion of case-based reasoning in chapter 7, is to identify
the purpose behind the relevant legal principle and then show how that
purpose would be furthered by a decision in favor of the advocate’s posi-
tion. Having done this, he will have to show that the position does not
violate settled law, and this will require a further discussion of the cases.
So precedent will enter at two stages in the argument: as a source of gov-
erning principles, and as a constraint on efforts to realize those princi-
ples in the novel setting of the case at hand. At neither stage, however,
will the good advocate be arguing that the result for which he is con-
tending is already “in” the law.
These simple principles should be at the heart of a legal education.
Law students could learn something about them from reading what
judges have written about judging, as we shall see in the next chapter,
and indeed from reading Llewellyn’s book. But these writings are not
taught. It would also be helpful to law students if casebooks sometimes
published not only the judicial opinion in a case but also the lawyers’
briefs, so that the student could see how close to or (more likely) far
from the judge’s conception of the case the lawyers’ conceptions were;
how the lawyers failed or succeeded in communicating effectively with
 Judges Are Not Law Professors 221

the judge; and how different the judge’s concerns were from the lawyers’.
It would be an eye-opener.
Problems of communication are typically and in this instance two-
way. Judges are not good at telling lawyers what they expect from them.
This is an aspect of the curious institutional passivity of the judges in
our system. One thing judges and umpires really do have in common is
that just as umpires don’t try to tell players how to play better, judges are
disinclined to tell lawyers how to brief and argue cases better. The differ-
ence is that judges, but not umpires, change the rules from time to time,
and do so in response to the urging of contestants. They are not passive
observers, but they often act as if they are, watching lawyers drone their
way to defeat.
The failure of law professors to come to terms in their teaching and
writing with the ghostwriting of judicial opinions by law clerks is espe-
cially damaging to a realistic understanding of adjudication. The failure
may be rooted in embarrassment at teaching as the law the writings of
neophyte lawyers who a year or two before were students, or in a desire
not to make impressionable students prematurely cynical about judges.
Whatever the cause, the effect is to obfuscate the judicial process. Why,
in the aftermath of legal realism, the legal process school, the findings of
the attitudinalists, and the analysis of the judicial process in books such
as this, are judicial opinions on average as legalistic as they were a cen-
tury ago and more legalistic than they were a half century ago? Because
today most judicial opinions are written by law clerks, which was not
true a century ago, when very few judges even had law clerks (some had
“legal secretaries,” but most of their duties were indeed secretarial), and
was less true decades ago, when judges had fewer law clerks and law still
had a writing culture. Students are taught to approach judicial opin-
ions as if every word were written by the nominal author—that is, the
judge—and the effect is to imbue them with a legalistic outlook, an
effect reinforced by their youth (to which, as I suggested in chapter 6, al-
gorithmic thinking as distinguished from pragmatic or legislative think-
ing is more congenial than it is to older persons) and by an understand-
able desire to believe that their steep law school tuition is buying them a
set of powerful analytic tools. When they become law clerks it is natural
for them to write opinions designed to provide legalistic justifications
for their judges’ votes. They thus contribute to the mystification of the
next student generation.
If after all this you still doubt the alienation of the elite legal profes-
222 The Model Elaborated

soriat from the courts, I ask you to consider the participation of a num-
ber of those professors in the litigation that culminated in the Supreme
Court’s 8–0 decision in Rumsfeld v. Forum for Academic & Institutional
Rights, Inc. (FAIR).19 The decision, which involved the response of law
schools to military discrimination against homosexuals, was neither mo-
mentous nor unexpected (a decision the other way would have been
both), but the suit was in effect an academic project from which we
can learn something about the relation between judges and law pro-
fessors.
As a result of the compromise in 1993 between the Defense Depart-
ment and President Clinton that created the “don’t ask, don’t tell” policy,
homosexual orientation is no longer a bar to serving in the armed forces
unless manifested by homosexual “conduct,” broadly and somewhat
oddly defined as a homosexual act, a statement that the person is homo-
sexual, or a marriage or attempted marriage to someone of the same
sex.20 Military recruiters no longer ask applicants what their sexual ori-
entation is. But members of the armed forces who disclose a homosexual
orientation are liable to expulsion even if they are not known to engage
in homosexual acts and do not flaunt their homosexuality, as by at-
tempting a homosexual marriage.
The response of most law schools to military discrimination against
homosexuals, beginning in the 1970s and undeterred by the “don’t ask,
don’t tell” compromise, was to deny Judge Advocate General (JAG) re-
cruiters the same assistance in recruiting law students that the schools’
career placement offices provide to law firms and other potential em-
ployers who promise not to discriminate against applicants for employ-
ment on the basis of their sexual orientation. Not that the law schools
single out military recruiters. The denial of assistance applies to all em-
ployers who refuse to hire homosexuals. Nor are JAG recruiters (or
other discriminators) banned from law school campuses. But they are
denied the extensive assistance that law schools offer recruiters who, so
to speak, take the pledge—assistance that includes “recurring ‘meet the
employer nights,’ or gatherings on campus at which students and em-

19. 126 S. Ct. 1297 (2006). Justice Alito did not participate.
20. “Policy on Homosexual Conduct in the Armed Forces,” Memorandum from Secretary
of Defense Les Aspin to the Secretaries of the Army, Navy, and Air Force, and to the Chairman
of the Joint Chiefs of Staff (July 19, 1993), [Link]
.pdf (visited Sept. 24, 2007). The policy was codified by Congress in 10 U.S.C. § 654(b).
 Judges Are Not Law Professors 223

ployers’ representatives can meet in a cordial, low-pressure, event that is

more like a cocktail reception than an interview or meeting.”21
Congress riposted with a law known as the Solomon Amendment,
which in its present form denies federal funding to any institution of
higher education any component of which prevents military recruiters
“from gaining access to campuses, or access to students . . . on cam-
puses, for purposes of military recruiting in a manner that is at least
equal in quality and scope to the access to campuses and to students that
is provided to any other employer.”22 Law schools reluctantly complied
lest their universities lose federal funding. But a coalition of law schools
and law professors—the Forum for Academic and Institutional Rights
(FAIR)—challenged the constitutionality of the law, arguing that it im-
poses an unconstitutional condition on the receipt of federal funds: to
obtain them a law school must mute its opposition to discrimination
against homosexuals by providing the same hospitality to military re-
cruiters that it extends to employers who pledge not to discriminate.
FAIR lost in the district court, won in the court of appeals,23 and lost
again in the Supreme Court.
An amicus curiae brief filed on behalf of a large number of Harvard
Law School professors opposed the government on a different ground
from FAIR’s—that there is no violation of the Solomon Amendment as
long as a law school, rather than singling out military recruiters, denies
placement assistance to all employers who refuse to promise not to dis-
criminate against homosexuals. The brief argues against holding the Sol-
omon Amendment unconstitutional because that “could encourage at-
tempts by discriminatory employers, educational institutions or other
groups to evade compliance with various pieces of federal civil rights
legislation . . . by asserting that granting equal treatment without regard
to race or sex would send a ‘message’ with which they disagree.”24
The Supreme Court rejected the suggested interpretation, which bor-
dered on the absurd. As the Court pointed out (and remember that eight
Justices, including the four liberal Justices, agreed), the interpretation

21. Brief of NALP et al., 2005 U.S. S. Ct. Briefs LEXIS 622, at n. 12 (Sept. 20, 2005) (foot-
notes omitted).
22. 10 U.S.C. § 983 (Supp. 2005).
23. 390 F.3d 219 (3d Cir. 2004).
24. Brief of Professors William Alford et al., 2005 U.S. S. Ct. Briefs LEXIS 630, at n. 22
(Sept. 21, 2005) (footnote omitted).
224 The Model Elaborated

would defeat the purpose of the Solomon Amendment because it would

allow law schools to continue without any change at all their policy of
excluding military recruiters, as what law school would permit any em-
ployer that discriminated against homosexuals access to recruitment fa-
vors? Congress would have achieved nothing by its law. Nullification is
not an accepted method of statutory interpretation.
Concerning the constitutional issue—the issue pressed by FAIR and
decided in its favor by the court of appeals—the Supreme Court said
that “the Solomon Amendment neither limits what law schools may say
nor requires them to say anything. Law schools remain free under the
statute to express whatever views they may have on the military’s con-
gressionally mandated employment policy, all the while retaining eligi-
bility for federal funds.”25 To the argument that the assistance that law
school placement services render compliant employers includes com-
pelled speech in the form of “send[ing] e-mails or post[ing] notices on
bulletin boards on an employer’s behalf,” the Court responded that Con-
gress “can prohibit employers from discriminating in hiring on the basis
of race. The fact that this will require an employer to take down a sign
reading ‘White Applicants Only’ hardly means that the law should be an-
alyzed as one regulating the employer’s speech rather than conduct.”26
Just as no one would suppose that the racist employer had had a
change of heart, so no one reading the notices sent to students or em-
ployers by law school placement offices would think the law schools
were expressing agreement with the policies of prospective employers.
Law firms that represent cigarette companies or pornographers, the law
departments of giant corporations that pollute the atmosphere or sell
munitions to Third World dictators or abuse experimental animals or
buy gold from slave labor mines in the Congo, the offices of the general
counsel of the CIA and the Defense Department, right-wing and left-
wing public interest firms—all are welcome to “meet the employer”
nights. (This raises the question why only discriminators against homo-
sexuality are turned away. The answer is that the grievance of homosex-
ual law students is “available,” in the cognitive psychologists’ sense, to
law school faculty in a way that other questionable conduct of potential
employers is not.) No one, least of all the law schools themselves, thinks

25. 126 S. Ct. at 1308.

26. Id.
 Judges Are Not Law Professors 225

that by extending this welcome the law schools or their faculties endorse
the policies of their employer guests. All that a law school is “express-
ing” by its hospitality gestures to prospective employers of its students is
its desire to help the students get good jobs, for the law school’s sake as
well as the students’. (Successful graduates tend to be loyal and gener-
ous alumni.) A law school can if it wants make emphatically clear that it
is playing host to JAG recruiters only because it must do so or cost its
university federal money. The Court pointed out that it had “held that
high school students can appreciate the difference between speech a
school sponsors and speech the school permits because legally required
to do so, pursuant to an equal access policy. Surely students have not
lost that ability by the time they get to law school.”27
The other seven Justices who participated in the decision all joined
the Chief Justice’s rebuke of the legal professoriat for overreaching: “In
this case, FAIR has attempted to stretch a number of First Amendment
doctrines well beyond the sort of activities these doctrines protect.”28
FAIR “plainly overstates the expressive nature of [the law schools’] ac-
tivity and the impact of the Solomon Amendment on it, while exaggerat-
ing the reach of our First Amendment precedents.”29
The Harvard professors (who did their stretching on the principles
of statutory interpretation) were right that invalidating the Solomon
Amendment would foster other discrimination by educational institu-
tions by curtailing the government’s authority to use its spending power
to prevent discrimination. It would empower conservative law schools
to refuse to assist employers who refused to promise not to hire homo-
sexuals. But the professors’ solution was so far-fetched as to raise a ques-
tion of academic integrity. A lawyer whom you hire to represent you can
in perfect good faith make any argument on your behalf that is not frivo-
lous. But the professors were not parties to Rumsfeld v. FAIR and so a
reader of their amicus curiae brief might expect the views expressed in it
to represent their best professional judgment on the meaning of the Sol-
omon Amendment. The brief identifies them as full-time faculty mem-
bers of the Harvard Law School rather than as concerned citizens, and
one expects law professors, when speaking ex cathedra as it were, to be
expressing their true beliefs rather than making any old argument that
27. Id. at 1310.
28. Id. at 1313.
29. Id.
226 The Model Elaborated

they thought had a 1 percent chance of persuading a court. It is hard to

believe that all of the professors who subscribed to the Harvard brief ac-
tually thought that interpreting the Solomon Amendment as a nullity
was the best interpretation, or that they are interpretive nihilists who be-
lieve that the meaning of a text is entirely in the eye of the beholder.
This criticism of the law professors is inapplicable to law schools
themselves and to their association (the Association of American Law
Schools, another amicus curiae). Of course a law school (and its univer-
sity) would prefer to have federal money given to it without strings at-
tached, especially strings that will get it in trouble with students and fac-
ulty members strongly hostile to the military’s policy on homosexuals. It
is hyperbole for the Association of American Law Schools to argue that
the price of a law school’s retaining its federal funding is to “abandon its
commitment to fight discrimination”30 or that the issue in the case was
the right of a university to decide what may be taught.31 But one under-
stands that this is merely lawyer rhetoric in the service of a conventional
client interest.
The same cannot be said for the Harvard professors’ amicus brief, or
for the brief filed on behalf of a large majority of the faculty of the Yale
Law School. That brief restates FAIR’s constitutional argument in exag-
gerated form, saying that the Solomon Amendment “trample[s] upon
the [Yale Law School] Faculty Members’ academic freedom” by forcing
them “to assist the military in telling some Yale Law students that they
are not fit to serve in our country’s armed forces because of their sexual
orientation.”32 No student could think that by virtue of Yale’s bowing to
the Solomon Amendment, the law school faculty was complicit with the
military policy on homosexuals. If the Yale hospital treats a homophobe
who has cancer, is the Yale medical faculty signaling its approval of ho-
mophobia? That is the logic of the brief.
To bolster its extravagant claim, the Yale brief cites a case in which the
Supreme Court held that the First Amendment entitled the NAACP to
organize a boycott of merchants who discriminated against blacks:33
“The Court’s decision in Claiborne makes it clear that the First Amend-
30. Brief for the Association of American Law Schools, 2005 U.S. S. Ct. Briefs LEXIS 637, at
n. 16 (Sept. 21, 2005).
31. Id. at n. 29–30.
32. Brief Amici Curiae of Robert A. Burt et al., 2005 U.S. S. Ct. Briefs LEXIS 638, at nn. 2–3
(Sept. 21, 2005).
33. Id. at nn. 13–14, discussing National Association for the Advancement of Colored Peo-
ple v. Claiborne, 458 U.S. 886, 911, 913 (1982).
 Judges Are Not Law Professors 227

ment fully protects the Faculty Members’ refusal to cooperate with or as-
sist, to disassociate from, and thereby to protest against, the military’s
discrimination against their gay, lesbian, and bisexual students.”34 But
the NAACP was not trying to bite the hand that fed it. The logic of the
Yale professors’ reading of Claiborne is that if the Yale Law School re-
fused to allow the federal government to audit its use of federal funds,
on the ground that money saved by the auditors might be diverted to the
war in Iraq, the First Amendment would entitle Yale to bar the auditors
but keep the money. It is no answer that the government has a legitimate
interest in auditing government grants but not in discriminating against
homosexuals. The discrimination against homosexuals is legal, and the
Yale professors’ brief makes no effort to evaluate the reasons for it, which
may not be entirely the product of ignorance and malice, as the profes-
sors believe. They also fail to note a countervailing First Amendment in-
terest. In discriminating against military recruiters the law schools limit
their students’ exposure to views concerning military policy that are
contrary to the orthodoxy that dominates the law school community. If
the Solomon Amendment is censorship, so is the law schools’ discrimi-
nation against military recruiters.
The Harvard and Yale law professors’ amicus curiae briefs are conven-
tional in approach, poorly reasoned, and devoid of constructive content.
In all but one instance35 the professors did not write the briefs them-
selves but instead hired a law firm to do so. I am told that at least in the
case of the Yale professors’ brief the intellectual input by the professors
was substantial. I would be more comfortable had it been insubstantial.
Not only is there nothing in the briefs that distinguishes them from the
ordinary product of practicing lawyers, but they make some embarrass-
ingly bad arguments and contain no academic insights.
These law professors, the cream of the current crop, seem to have no
clue as to how to help a court decide a case. Their idea of a persuasive
brief is one that bludgeons the judges with precedents that though inapt
contain some general language helpful to the cause. They think that the
only rhetoric that is effective in the Supreme Court is a legalist rhetoric.
34. Brief Amici Curiae of Robert A. Burt et al., note 32 above, at n. 14.
35. Brief for Amicus Curiae the American Association of University Professors, 2005 U.S. S.
Ct. Briefs LEXIS 641, at nn. 2–3 (Sept. 21, 2005). This brief states that “a faculty is entitled to
make the academic judgment that assisting recruitment by an employer that refuses to hire
openly gay students is akin to failing a student in class merely for being gay.” Id. at n. 12. That
is like saying that teaching evolution to a class that contains believers in biblical inerrancy is
akin to flunking a student because he is a fundamentalist Christian.
228 The Model Elaborated

They do not understand that the distinctive legal academic culture that
has evolved in recent decades could, without offense to the norms of ap-
pellate advocacy, have made a distinctive contribution to the Justices’
consideration of Rumsfeld v. FAIR. Missing from the briefs is any discus-
sion of why our armed forces want to continue a ban on homosexuals
that has been abandoned by most of the countries that we consider to be
our peers, and what effect invalidating the Solomon Amendment would
have on the ban, on the quality of the armed forces, and on military jus-
tice. Judges are curious about such things. They want to understand the
real stakes in a case. They want the lawyers to help them dig below the
semantic surface. Maybe the military has reason to believe that lifting
the ban on homosexuals all the way would undermine military morale,
complicate recruitment, and further strain our already overstretched
military. If so, this belief would have to be weighed against the harm to
homosexuals36 (indeed, the harm to the military itself) from the ban.
The military perforce recruits heavily from a segment of the population
that would be upset at the thought of homosexuals’ being entitled to
serve with them. And that anxiety—even if no better than an ignorant
prejudice—is something that a conscientious Administration would have
to weigh, especially when the nation is at war. (I am referring not to the
“war on terror,” a locution that is both imprecise and misleading, but to
U.S. military operations in Iraq and Afghanistan.) But public opinion on
homosexuality is in flux. Abolishing the ban might have no more effect
on U.S. military morale than abolishing it in Britain, Israel, and many
other countries has had on their militaries.
As for the consequences of invalidating the Solomon Amendment—a
topic on which academics might be expected to have a unique perspec-
tive just by virtue of being academics—one would be that fewer students
from elite law schools would be hired by the military because JAG re-
cruiters would not have the same access to those students as other re-
cruiters would. Some of the discouraged students would be homosexual.
Homosexuals are not excluded by the armed forces; they are forced to
stay in the closet. (The situation was practically though not legally iden-
tical before “don’t ask, don’t tell.”) Many homosexuals today are unwill-
ing to remain closeted, but some are willing, even some who attend

36. “It is terrible to tell people they are unfit to serve their country, unless they really are
unfit, which is not the case here.” Richard A. Posner, Sex and Reason 321 (1992).
 Judges Are Not Law Professors 229

schools such as Harvard and Yale. If they are recruited into a JAG corps,
this may hasten the end of the formal ban on homosexuals. But what is
more important, as Peter Berkowitz has pointed out, is that most stu-
dents at such law schools, whatever their sexual orientation, are lib-
eral.37 The more of them who are recruited for JAG service, the sooner
the ban will collapse.
The practical consequences of upholding or invalidating the Solomon
Amendment are sociopolitical facts that academics are in a better posi-
tion to investigate than practicing lawyers. Inquiring into those facts
and presenting the results to the courts would be a more useful employ-
ment of law professors’ time than hiring practitioners to flog prece-
dents. There is a sheeplike character to all these professors signing on to
a practitioner’s brief (the sheep being led by the goat). One might have
thought that some of them would speak in their own voice—express an
individual view. Can’t a law professor at Harvard or Yale write a brief?
Well, maybe not anymore; but he could do the research that only aca-
demics can do well, and let the practitioner convey the results in the
brief.
Maybe the law professors, or most of them, who signed the amicus cu-
riae briefs were just buckling to student pressure, or demonstrating soli-
darity with their liberal students, who are in the strong majority in elite
law schools. One hopes that that is true and that they can be persuaded
to turn their minds to questions fundamental to the judicial process that
judges cannot answer, such as the trade-offs between rules and stan-
dards or between strict and loose construction. Law professors have
better tools for investigating such questions of urgent importance to
judges than they used to have, but worse communication with and less
insight into the judiciary. The academics’ briefs in Rumsfeld v. FAIR mir-
ror the lack of realism in the teaching of law students about courts. Both
realms treat an appeal as a duel of precedents. Neither understands the
judicial mind. Neither acknowledges the politicization of constitutional
law and the consequences for effective advocacy. Judges sense a widen-
ing chasm between the professoriat and the judiciary. In Rumsfeld v. FAIR
we glimpse its breadth. If as I suspect the root cause is the increased spe-
cialization of academic lawyers, the chasm may be unbridgeable.

37. Peter Berkowitz, “U.S. Military: 8, Elite Law Schools: 0, How Many Professors Does It
Take to Misunderstand the Law?” Weekly Standard, Mar. 20, 2006, p. 10.
9

Is Pragmatic Adjudication
Inescapable?

The word that best describes the average American judge at all levels of
our judicial hierarchies and yields the greatest insight into his behavior
is “pragmatist”1 (more precisely, as I shall explain, “constrained pragma-
tist”). It is not all that is left after legalism, extreme attitudinalism, and
the compulsion of comprehensive theory are rejected as being inade-
quately descriptive of judicial behavior. But it is a lot. Brian Tamanaha
estimates that more American judges fit the pragmatist label than any
other,2 but it would be more accurate to say that most American judges
are legalists in some cases and pragmatists in others; for remember that
legalism is a pragmatic tactic, though it need not be only that. And many

1. This is an old theme for me; see my books The Problems of Jurisprudence (1990), espe-
cially ch. 15; Overcoming Law (1995), especially ch. 19; The Problematics of Moral and Legal
Theory, ch. 4 (1999); An Affair of State: The Investigation, Impeachment, and Trial of President
Clinton 217–230 (1999); Breaking the Deadlock: The 2000 Election, the Constitution, and the
Courts 169–187 (2001); Law, Pragmatism, and Democracy (2003).
2. Brian Z. Tamanaha, “How an Instrumental View of Law Corrodes the Rule of Law,” 56
DePaul Law Review 469, 490 (2007) (“It is fair to surmise that a greater proportion of contem-
porary judges are judicial pragmatists . . . Judicial decisions today routinely cite policy con-
siderations, consider the purposes behind the law, and pay attention to law’s social conse-
quences”). For interesting recent acknowledgments of the prevalence of pragmatic judging in
the Supreme Court, see Nelson Lund, “The Rehnquist Court’s Pragmatic Approach to Civil
Rights,” 99 Northwestern University Law Review 249 (2004); Kenneth W. Starr, “The Court of
Pragmatism and Internationalization: A Response to Professors Chemerinsky and Amann,” 94
Georgetown Law Journal 1565 (2006). I discuss the Court’s (intermittent) pragmatism in the
next chapter. There is a growing literature, illustrated by John R. Tennert, “Administrative Law
as Pragmatism,” 29 International Journal of Public Administration 1339 (2006), on the pragmatic
vein in various fields of law, but it would carry me too far afield to discuss that literature in this
book.

230
 Is Pragmatic Adjudication Inescapable? 231

judges of either inclination encounter cases in which neither set of tech-

niques works—the legalist techniques run out but the consequences of
the decision are unknown; or perhaps a strong moral or emotional reac-
tion (maybe indignation aroused by the conduct of one of the parties)
overrides both a legalistic response and a concern with consequences.
Nevertheless the pragmatic vein in American judging is wide and deep.
It was as a style of philosophizing that the word “pragmatism” first
achieved widespread currency in American intellectual circles. Pragma-
tism was the invention of three American philosophers—Charles Sanders
Peirce, William James, and John Dewey—whose lives overlapped and
who among them spanned almost a century, from the late 1860s to the
early 1950s, although the antecedents reach back to the Sophists and Ar-
istotle and less remotely to Hume, Mill, Emerson, Hegel, and Nietzsche.
The views and methods of the classic American pragmatists were diverse
(and only Dewey was actually trained as a philosopher), but they had in
common a turning away from the traditional philosophical agenda of
the West. The agenda had been set by Plato and was concerned primarily
with investigating the meaning and possibility of truth, the foundations
of knowledge, modes of reasoning, the nature of reality, the meaning of
life, the roles of freedom and causality in human action, and the nature
and principles of morality. The pragmatists turned away not only from
the topics but also from the methodology of the philosophical main-
stream, with its emphasis on conceptualism, the a priori, and logical
rigor. They advocated a radical empiricism in which propositions would
be evaluated by their observable consequences rather than by their logi-
cal antecedents—advocated, in other words, an extension of the scien-
tific method into all areas of inquiry. Dewey called his brand of prag-
matism “experimentalism,” and the word conveys an apt sense of the
tentative, antidogmatic, to a degree antitheoretical outlook that charac-
terized (and characterizes) philosophical pragmatism—“an instrumen-
talist or problem solving approach to ideas and institutions. On a prag-
matist view, our ideas, principles, practices and institutions simply are
tools for navigating a social and political world that is shot through with
indeterminacy.”3
Pragmatism had been hatched in an informal discussion group in
3. Jack Knight and James Johnson, “The Priority of Democracy: A Pragmatist Approach to
Political-Economic Institutions and the Burden of Justification,” 101 American Political Science
Review 47, 49 (2007).
232 The Model Elaborated

Cambridge, Massachusetts, in the early 1870s. The participants included

not only Peirce and James but also, among others, the young Holmes.
Precisely what contribution Holmes made to the birth of philosophical
pragmatism is unclear. But throughout his life his thought was strongly
marked by pragmatism. The pragmatic approach to law was announced
in the famous opening sentence of The Common Law (1881) (“The life of
the law has not been logic; it has been experience”) and elaborated in
that book and in a later article, “The Path of the Law.”4 In these and
other works, and in many of his judicial opinions, Holmes rejected the
then orthodox notion that judges could decide difficult cases by a pro-
cess of or very similar to logical deduction from premises given by au-
thoritative legal texts, or by unquestioned universal principles that in-
spire and subsume those texts (“natural law”). He argued that judges
in difficult cases made law with reference to the likely social and eco-
nomic consequences of their decisions, and that their intuitions about
those consequences, rather than the abstract moral principles and for-
mal legal analysis deployed in conventional judicial opinions, drove le-
gal change and had made the law what it had become. Nor did he think
that judges engaged in bloodless policy science. He thought that their
political views, such as fear of socialism, were major influences on their
decisions.
Philosophical and legal pragmatism coevolved. A celebrated essay by
John Dewey drew heavily on Holmes’s writings.5 Published in 1924,
just as legal realism was getting under way, the essay urged judges and
lawyers to turn from conceiving of legal decisions as the products of
deduction from rules taken as given to understanding the practical con-
sequences of legal decisions and shaping the law accordingly. Dewey
advocated a forward-looking, empiricist, even political—though in a
nonpartisan sense—approach, as distinct from the backward-looking
syllogistic approach (and other mystifications, such as “legal reason-
ing by analogy”) of conventional legal thinkers. He was in sync with
Holmes, who also had a nondoctrinaire, open-minded, experimentalist
approach to law and public policy, as when in his judicial decisions
he urged that the Supreme Court not cut off in the name of constitu-
tional rights the newfangled social welfare legislation being enacted by

4. Oliver Wendell Holmes, “The Path of the Law,” 10 Harvard Law Review 457 (1897).
5. John Dewey, “Logical Method and Law,” 10 Cornell Law Quarterly 17 (1924).
 Is Pragmatic Adjudication Inescapable? 233

states, which he viewed as laboratories for social experimentation that

the Court should allow to continue, or when he said anent socialism
(which he opposed), “Of course I have no a priori objection to socialism
any more than to polygamy. Our public schools and our post office are
socialist, and wherever it is thought to pay I have no objection except
that it probably is wrongly thought.”6
When Dewey died in 1952, philosophical pragmatism underwent an
eclipse from which it emerged twenty years later through the efforts
of the philosopher Richard Rorty, who built on work by Wittgenstein,
Quine, and Davidson that had strong affinities with the work of the orig-
inal pragmatists. In the last quarter century philosophical pragmatism
has enjoyed a renascence and for the first time has begun to attract a Eu-
ropean following, notably in the figure of Jürgen Habermas, who has ac-
knowledged a debt to the American pragmatists. Before Habermas virtu-
ally the only European pragmatic philosopher had been F. S. C. Schiller,
and his influence had been limited.
Despite the fading of the legal realist movement in the early 1940s,
American legal pragmatism continued throughout the period of philo-
sophical pragmatism’s eclipse to be a highly influential tendency in legal
thought, and so it continues to be. Only recently, however, has it become
self-conscious, in the sense that advocates of legal pragmatism are en-
deavoring to define it carefully, to compare it with other schools of legal
thought such as economic analysis of law, to situate it in relation to
other currents of social thought such as philosophical pragmatism, to
apply it to specific legal doctrines and decisions, and to evaluate its
strengths and limitations.
I said that philosophical and legal pragmatism coevolved. But it would
be a mistake to suppose legal pragmatism identical to or dependent on
philosophical pragmatism, so that criticisms of philosophical pragma-
tism would necessarily be criticisms of legal pragmatism. The case for le-
gal pragmatism is based not on philosophical argument but on the needs
and character of American law. I note at the end of this chapter that legal
thinking in Continental European judiciaries is less pragmatic than in
the United States because of the institutional differences, discussed in

6. Letter from Oliver Wendell Holmes to Lewis Einstein, Nov. 24, 1912, in The Essential
Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver
Wendell Holmes, Jr. 66 (Richard A. Posner ed. 1992).
234 The Model Elaborated

chapter 5, between the American judicial system and the European ca-
reer judiciaries.
I do not even think that legal pragmatism is strongly derivative from
philosophical pragmatism. Its origin is more likely the nineteenth-century
loss of faith in natural law, a loss connected with the loss of religious
faith that many intellectuals experienced in the wake of Darwin and the
ascent of a scientific outlook arising from the growing success of science
as a mode of understanding and control. If the common law, which
loomed larger in the nineteenth century than it does today, is not the
translation of natural law into positive law, or the judicial adoption of
immemorial custom as Blackstone and later Hayek urged, then it must
be something that judges make up as they go along. It must mean that
judges in the Anglo-American tradition really are occasional legislators.
That was Holmes’s conclusion.7
Hayek was a legalist tout court, but Blackstone’s case is more compli-
cated. There is a sense in which he was a founder of legal pragmatism.
His claim that the common law was of Saxon origin was a fiction use-
ful for justifying judicial creativity in terms congenial to eighteenth-
century thinking. In effect he licensed judges to justify changing the
common law by claiming that by doing so they were restoring its origi-
nal meaning.8 This was pragmatism as fake originalism. And we recall
that Blackstone, in his response to the Bologna bloodletting statute,
adopted a purposive theory of statutory interpretation—a key plank in
the platform of legal pragmatism.
Saxon law cannot be our answer to the question, if judges are indeed
occasional legislators, what are the sources and content of the legisla-
tion they enact in the course of deciding cases? The answer at which
Holmes hinted is ideology,9 and it was the answer given by many of the
legal realists of the 1920s and 1930s. Some thought all law was poli-
tics in a narrow partisan sense, denounced judges for their reactionary
politics, and urged the appointment of liberals to the bench. But this

7. “I recognize without hesitation that judges do and must legislate.” Southern Pacific Co.
v. Jensen, 244 U.S. 205, 221 (1917) (dissenting opinion).
8. Richard A. Posner, The Economics of Justice 25–27 (1981).
9. Holmes, note 4 above, at 466; Oliver Wendell Holmes, Jr., The Common Law 1 (1881):
“The life of the law has not been logic; it has been experience. The felt necessities of the time,
the prevalent moral and political theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men, have had a good deal more to do
than the syllogism in determining the rules by which men should be governed.”
 Is Pragmatic Adjudication Inescapable? 235

approach seemed to imply that one group of usurpative judges should

simply be replaced by another, a thought remote from Holmes’s proto-
realism and troubling to influential judges such as Cardozo and Hand
who agreed with Holmes. Those judges, joined by thoughtful realists
such as Felix Cohen, Max Radin, and Karl Llewellyn, wanted the judi-
ciary to be “realistic,” practical, think things not words, recognize the
epistemic limitations of legalism. But they did not want them to be polit-
ical in the narrow sense of trying to retard or (a favorite realist project)
promote the New Deal.
The realists could have pointed out that even a “politicized” judiciary
is not usurpative in a society that is politically homogeneous. Law is
shot through with political values, which when endorsed by the public
at large provide a neutral background of assumptions and presupposi-
tions rather than being a cockpit of contention. That which is unchal-
lenged seems natural rather than political. (We do not think that our
disapproval of cannibalism or infanticide is merely a political opinion.)
This is the situation in large stretches of the common law today—for it is
false that “the increasingly heterogeneous nature of modern society . . .
renders it highly unlikely that a social consensus will exist regarding any
ethical principle or policy goal that might ground common law adjudi-
cation.”10 Contract law, for example, is suffused with the values of cap-
italism, a political theory and practice. Yet as with property law, tort law,
commercial law, corporate law, and antitrust and securities law—among
many other fields, both common law and statutory—the basic tenets of
contract law are uncontroversial because America is so strongly commit-
ted to capitalism. In many areas of law, however, including some of the
areas just listed before capitalism vanquished communism in the battle
of economic ideologies, there was no consensus when the realists wrote.
Where did that leave the judge who could no longer accept that his role
was exhausted in the technical task of ascertaining and applying preex-
isting legal rules? How other than by reference to his political opinions
was he to resolve politically consequential issues that could not be re-

10. Jack Knight and James Johnson, “Political Consequences of Pragmatism,” 24 Political
Theory 68, 78 (1996) (emphasis added). Whether consensus justifies particular common law
rules, as doubted by Knight and Johnson in their criticisms of my defense of legal pragmatism,
is not the concern of this chapter. The concern is whether American judges are pragmatists, not
whether they should be, except insofar as the normative adequacy of such a judicial philosophy
might bear on the plausibility of thinking that American judges have ever actually practiced it.
236 The Model Elaborated

solved by conventional legal reasoning? The realists thought the answer

lay in bringing the methods and insights of the social sciences into law.
But either the social sciences were not up to the job or the realists were
not up to the social sciences. Not until the law and economics move-
ment gained momentum decades after realism faded would social sci-
ence make a major substantive contribution to legal pragmatism.
A diversity of moral and political views creates pressure for resolving
disputes on the basis of a thin proceduralism, which by avoiding sub-
stantive commitments provides a common ground on which persons of
antagonistic substantive views can meet.11 That is what we observe in
the legal process school (discussed further in chapter 10), which suc-
ceeded legal realism. Judges are adjured by that school to be impartial, of
course, but also to deliberate patiently and with an open mind and to
base jurisdictional allocations—between judge and jury, trial court and
appellate court, court and legislature, and so forth—on relative institu-
tional competence and thus to be respectful of other institutions (espe-
cially legislatures and administrative agencies; the legal process school
had a Progressive Era and New Deal flavor). Judges are especially ad-
jured to be mindful of the limits of their knowledge and the sources of
possible bias and to base their decisions on neutral principles rather
than on the consequences for society, or for the litigants, of deciding a
case one way or another. But saluting these content-free, technocratic-
seeming precepts is to adjudication as spring training is to the baseball
season. The precepts are warm-up measures. Closure requires agree-
ment on substance. Without that, the choice of neutral principles is up
in the air. No more than legal realism could legal process offer a substi-
tute for legalism on the one hand and politics and emotion on the other.
The idea of neutral principles reflects a confusion between legislation
and case law that came naturally to persons who were Progressives or
New Dealers and thus products of eras in which legislation, which de-
clares rights and obligations in general language and in advance of im-
plementation, was exalted by advanced thinkers over the common law.
Judges imbued with the values and methods of the common law were
thought (not without reason) reactionary; the evidence was judicial hos-
tility to labor unions, judicial invalidation of social legislation in the
11. See Bernard Williams, “Modernity and the Substance of Ethical Life,” in Williams, In the
Beginning Was the Deed: Realism and Moralism in Political Argument 40, 48–49 (Geoffrey Haw-
thorne ed. 2005).
 Is Pragmatic Adjudication Inescapable? 237

name of “liberty of contract,” the perceived inadequacy of tort law as a

regime for regulating safety, and the interpretive principle that statutes
in derogation of the common law are to be strictly construed. Neutral
principles were offered as the antidote to political decision making. But
when a court states a new principle in the course of deciding a novel
case, more often than not the statement’s semantic reach exceeds what is
necessary to decide the case. If the court in later cases insists in the name
of neutrality on enforcing the principle to the full literal extent of its
original statement, come what may, it will be refusing to learn from ex-
perience. It will be imitating a legislature, rather than using the knowl-
edge acquired from cases that the legislature did not foresee to fine-tune
the legislative rule.
With the increasing intellectual ambitiousness of academic law, com-
prehensive theories, substantive rather than procedural in character, have
been proposed to fill the gap between the orthodox legal materials and
the necessity of deciding a case even when those materials do not gener-
ate a convincing answer. These theories mainly are normative but their
proponents invariably find at least traces of them in case law. Most of the
theories have been proposed for constitutional law, that least disciplined
area of American law, and so are examined in Part Three. The most im-
portant theory that is not limited to constitutional law, though it em-
braces it, is economics. It is offered to explain legal doctrines and case
outcomes in some fields of law, mainly though not only the common law
fields, and to guide legal reform in the remaining fields.12 As a normative
theory, economic analysis of law is controversial. A judge’s choice to use
it to generate outcomes in the open area is an ideological choice except
when there is broad agreement that economics should guide the deci-
sion; consensus represses ideological conflict. As a positive theory, how-
ever, economic analysis of law does well in explaining legal doctrines
in a variety of commercial and noncommercial fields of law, including
broad swaths of tort, contract, criminal, intellectual property, environ-
mental, labor, and even constitutional law, along with major parts of re-
medial and procedural law. But it would be odd to describe American
judges as “economists,” or even as economic analysts of law. Very few of
them have a substantial background in economics, and in only a few
areas, such as antitrust law, are cases pitched to judges and juries in ex-

12. See Richard A. Posner, Economic Analysis of Law (7th ed. 2007).
238 The Model Elaborated

plicitly economic terms. The significance of economics for the study of

judicial behavior lies mainly in the consilience of economics with prag-
matism.13 The economist, like the pragmatist, is interested in ferreting
out practical consequences rather than engaging in a logical or semantic
analysis of legal doctrines.
Legalists object that if judges do not talk economics in their opinions,
and they rarely do, they cannot be doing economics.14 But this confuses
semantics with substance. There are parallel vocabularies in which to
discuss questions such as when an accidental injury should give rise to a
claim for damages. One vocabulary, very old, is legal, and the other,
much newer, is economic. The economic study of the common law, and
of other bodies of American law as well, has found considerable iso-
morphism between legal and economic analysis. The continued use of
different vocabularies illustrates “contextual convergence”: judges con-
tinue to employ a traditional vocabulary of rights and duties while grad-
ually investing the words with an economic meaning.15 This is an echo
of Holmes’s argument in The Common Law and “The Path of the Law”
that common law judges use an inherited moralistic vocabulary in a
nonmoralistic way.
But can legal pragmatism really do better than legalism (cannot re-
solve tough cases), legal realism (too vulgarly political in some versions,
too lacking in content in others), legal process (too thinly procedural),
or comprehensive theories (too controversial and too remote from the
judicial mind-set) in explaining the behavior of American judges?
The core of legal pragmatism is pragmatic adjudication, and its core is
heightened judicial concern for consequences and thus a disposition to
base policy judgments on them rather than on conceptualisms and gen-
eralities. But rather than being a synonym for ad hoc adjudication, in the
sense of having regard only for the consequences to the parties to the
immediate case, sensible legal pragmatism tells the judge to consider
systemic, including institutional, consequences as well as consequences
of the decision in the case at hand. He thus must consider the effects on
13. See Elisabeth Krecké, “Economic Analysis and Legal Pragmatism,” 23 International Re-
view of Law and Economics 421 (2004).
14. See, for example, Stephen A. Smith, Contract Theory 132–136 (2004).
15. See Jody S. Kraus, “Transparency and Determinacy in Common Law Adjudication: A
Philosophical Defense of Explanatory Economic Analysis,” 93 Virginia Law Review 287 (2007);
Nathan Oman, “Unity and Pluralism in Contract Law,” 103 Michigan Law Review 1483, 1492–
1498 (2005).
 Is Pragmatic Adjudication Inescapable? 239

commercial activity of disregarding the actual wording of a contract or

failing to adhere to legal precedents on which the commercial commu-
nity has come to rely.
Sensible pragmatic judges are to be distinguished from shortsighted
pragmatists, blinded by the equities of the case to the long-term conse-
quences of their decision; it is for the latter that the pejorative expres-
sion “result oriented” should be reserved. Imagine a judge (there are
more than a few) who does not think that the sale or use of marijuana
should be outlawed and the sellers of it harshly punished, as they are
under federal law today. He might be inclined to go easy on persons
charged with marijuana offenses. But the inclination would be offset by
the realization that judges would be bound to lose a guerrilla war with
Congress over the punishment of drug trafficking, by concern with the
possibility of compensatory harshness on the part of judges (and there
are many) who favor the application of strict drug laws to marijuana, by
respect for the beneficial consequences of the separation of powers, by
the advantages of uniform as opposed to ad hoc sentencing policies, and
even by disapproval of pleonexia. That was Aristotle’s term for trying to
get more than your fair share. It is what a person does who commits an
acquisitive crime, such as selling drugs, because by doing so he is steal-
ing a march on the law-abiding. The worker struggling to get by without
violating the law is justifiably indignant at the spectacle of the drug
dealer flaunting his jewelry and fancy cars. And because it is an acquisi-
tive crime, drug dealing can be deterred only by the threat of severe pun-
ishment, even if the crime itself seems rather trivial from either a practi-
cal (harm to society) or a moral standpoint.
In contrast to pragmatists, legalists tend (or pretend) to give control-
ling weight to an arbitrary subset of institutional consequences of judi-
cial decisions. They are hypersensitive to the uncertainty that can result
from loose construction of statutes and contracts, from seeking out the
purpose of a rule to determine the rule’s scope and application, from
salting doctrine with policy, and from aggressive distinguishing and over-
ruling of precedents. Pragmatists do not see how so one-sided an em-
phasis on possible negative consequences of pragmatic judging can be
sensible. But more interesting is the fact that contemporary justifications
of legalism should rest as heavily as they do on its consequences, rather
than on claims of what “law” means or requires. So pervasive is prag-
matic thinking in the American political culture that legalists are driven
240 The Model Elaborated

to defend the blinkered results to which their methodology of strict

rules and literal interpretations tends as yielding better consequences
than a fuller engagement with the facts of a case, a greater willingness to
knead rules into standards, and a looser interpretation of rules that were
created without reference to the situation presented by the new case
would do.
Pragmatists believe that the claim that legalism has better social con-
sequences is dogmatic and implausible, rather than being a hypothesis
that legalists are willing to see tested. Legalists argue that adjudication
should be backward-looking, that judges should not try to keep law up
to date but should leave to legislatures in the case of statutory law, and to
the amendment process in the case of constitutional law, any needed up-
dating of statutes or the Constitution. But they do not back their argu-
ment with facts concerning the ability of legislatures to update legisla-
tion in the face of the inertial forces built into the legislative process, or
the feasibility of a program of continuously amending the Constitution
to keep it up to date. They do not try to show what the state of the law,
and of the society, would be today had American judges, beginning with
that great loose constructionist John Marshall, consistently adhered to
the legalist creed.
Legalists even accept without demur a vast area of acknowledged in-
determinacy of judicial rulings. Anytime the standard of appellate re-
view is deferential—as where findings of fact made by a trial judge are
upheld because they are not “clearly erroneous,” or a ruling on evidence
is upheld because it is not an “abuse of discretion”—the appellate court
is implying that it would also uphold the opposite ruling. For it is saying
not that the finding of fact or the evidentiary ruling is correct but only
that it is within the bounds of the reasonable. Since the ruling and its op-
posite cannot both be correct, it must be that legalism—which does
not question the propriety of deferential appellate review of the types of
ruling that typically receive such review—countenances a great deal of
error.
Yet legal pragmatism may seem as empty as the legal process ap-
proach to which it is a successor, because it does not weight the conse-
quences of a decision or even specify which consequences should be
considered. Consequences are facts, and facts have no normative sig-
nificance in themselves. One cannot derive “ought” from “is.” A value
must be placed on each consequence. But often the value and its impor-
 Is Pragmatic Adjudication Inescapable? 241

tance are obvious. To deem the consequences of mass murder “harmful”

one has to believe mass murder a bad thing. But one does not need an
elaborate conceptual apparatus to arrive at or justify the belief. All one
needs is to share the basic moral values of one’s society.
This means, though, that what counts as an acceptably pragmatic
resolution of a dispute is relative to the prevailing norms of particular
societies. Pragmatism provides local rather than universal guidance to
judicial action. And its local utility depends on the degree to which
the society is normatively homogeneous. The more homogeneous, and
therefore the wider the agreement on what kind of consequences are
good and what kind are bad (and how good and how bad), the greater
the guidance that pragmatism will provide. By way of humble analogy,
most people in America believe that (with certain qualifications) if a
watch is broken it should be fixed. The belief is not inevitable. There
might be a society in which people believed it is bad luck to repair a
watch. But given the American belief, the fact that a watch is broken is a
reason on which almost everyone can agree for fixing it. It is not a con-
clusive reason, because (these are the qualifications to which I alluded)
the owner of the watch might be glad to be rid of it, the watch might cost
more to repair than to replace, or it might not have been used to keep
time (maybe it was just valued as an antique). But there is enough agree-
ment on the relevant considerations to enable a satisfactory pragmatic
judgment on what to do with a broken watch.
Similarly, even in our politically and morally divided society there is
convergence on many of the beliefs that undergird legal principles. For
example, although we lack the information we would need in order to
be able to assess the relative efficiency of rules and standards in general,
there are many specific areas in which the better choice is clear. We must
not make the best the enemy of the good. Although pragmatic adjudica-
tion rarely generates enough information to enable a decision that pro-
duces a social optimum, often it produces an approximation that is good
enough for the law’s purposes.
This possibility is given stylized representation in Figure 1. The mar-
ginal benefits (MB) and marginal costs (MC) of a safety measure that
would avoid an accident that has given rise to a tort suit are functions of
the type and quantity of the precautions that would have averted the ac-
cident. The optimal level of precautions (q*) is given by the intersection
of the two functions. To the right, an additional expenditure on safety
242 The Model Elaborated

MB

MC

0 q* Q

Figure 1. Tolerable Windows

would cost more than the benefit it would confer; to the left, an addi-
tional expenditure on safety would cost less than the benefit. Suppose q*
cannot be determined by the methods of litigation. The court may nev-
ertheless know enough about the benefits and costs to be able to create
the “window” formed by the two inner vertical lines.16 At the left side of
the window frame the benefits of a further effort to eliminate or prevent
the accident comfortably exceed the costs. At the right side the reverse is
true. If the judge knows whether the case is nearer the left or the right
side of the window, he knows which party has the better case. He does
not have to be able to determine the optimal level of precaution in order
to make a correct decision.
Legal pragmatism is “thicker” than the approach of the legal process
school, the school of thin proceduralism. There is a difference between
exhorting judges to be impartial, open-minded, neutral, and so forth and
exhorting them to base their decisions on consequences. For then at
least they must attend to consequences, and this has significant implica-
tions for how a judge approaches a case, what he demands from the law-
yers, what research he conducts, and what he discusses in his opinions.
Most often a case is difficult because it requires striking a balance be-
tween two interests, both of social value, such as civil liberties and na-
tional security, intellectual creativity and access to already created intel-
lectual works, a woman’s welfare and her fetus’s survival, a fair trial
and a public trial, privacy and information. There may be no objective
method of valuing the competing interests. But analysis can be made
16. Ferenc L. Toth, “Climate Policy in Light of Climate Science: The ICLIPS Project,” 56
Climatic Change 7 (2003). See also Thomas Bruckner et al., “Methodological Aspects of the Tol-
erable Windows Approach,” 56 Climatic Change 73 (2003).
 Is Pragmatic Adjudication Inescapable? 243

more manageable by pragmatically recasting the question as not which

of the competing interests is more valuable but what are the conse-
quences for each interest of deciding the case one way rather than the
other. If one outcome involves a much smaller sacrifice of one of the
competing interests, then unless the two are of very different value that
outcome will probably have the better overall consequences. That was
the approach the Supreme Court took in Roe v. Wade, in balancing the
mother’s interest against the state’s interest in fetal life, though the ap-
proach was executed ineptly.
Moreover, pragmatic analysis will sometimes reveal, as in the Leegin
case (see chapter 1), that the conflict is a false one, as when consumer
and producer interests are mistakenly thought to be in conflict when
producers seek to fix minimum retail prices for their goods in an effort
to encourage retailers to provide presale services valued by consumers.
The pragmatic judge is less interested in whether the facts of a case
bring it within the semantic scope of the rule agreed to govern the case
than in what the purpose of the rule is—what consequences it seeks to
induce or block—and how that purpose, those consequences, would be
affected by deciding the case one way or the other. The advantages of the
pragmatic approach are exhibited in a recent case, Yi v. Sterling Collision
Centers, Inc.17 The issue was whether the defendant, sued for violating
the overtime provisions of the Fair Labor Standards Act, could bring it-
self within one of the Act’s exceptions. The district court had held, in ac-
cordance with a long line of cases, that the defendant had not presented
“clear and affirmative evidence” of its entitlement to the exception. Be-
cause so many cases had recited this formula, it was natural for lawyers
and judges to treat it as gospel and ask whether the defendant had pre-
sented such evidence. But in doing so they were ignoring Holmes’s warn-
ing that “to rest upon a formula is a slumber that, prolonged, means
death.”18 For what could “affirmative evidence” mean? And since no one
believes that to prove a violation of the Fair Labor Standards Act the
plaintiff must present “clear and affirmative evidence,” why should the
defendant have to do so in order to bring itself within an exception to
the Act? Why the asymmetry?
The court of appeals in Yi traced the formula back to its origin and
17. 480 F.3d 505 (7th Cir. 2007).
18. Oliver Wendell Holmes, “Ideals and Doubts,” in Holmes, Collected Legal Papers 303,
306 (1920 [1915]).
244 The Model Elaborated

discovered that it had first appeared in a case decided in 1984, where it

had not been explained but had merely been attributed to two earlier
cases. One of them had said only that the burden of proving entitlement
to an exemption is on the defendant (of course), the other that the de-
fendant “has the burden of establishing the exemption affirmatively and
clearly.” In support of this proposition the court had cited a case that
again without explanation had said that an employer seeking an exemp-
tion “has the burden of showing affirmatively that [the employees] come
clearly within an exemption provision.” Earlier still, another case had
offered a variant of this formulation—“the burden is upon the appellant
to bring itself plainly and unmistakably within the terms and the spirit
of the exemptions”—which had in turn been lifted from a 1945 decision
in which the Supreme Court had said that “any exemption from such
humanitarian and remedial legislation [i.e., the Fair Labor Standards
Act] must . . . be narrowly construed, giving due regard to the plain
meaning of statutory language and the intent of Congress. To extend an
exemption to other than those plainly and unmistakably within its terms
and spirit is to abuse the interpretative process and to frustrate the an-
nounced will of the people.”19
At this point the trail grows cold. But one sees what happened—what
so often happens when judges think words not things. The early opin-
ions used “affirmatively” and “clearly” or (equivalently) “plainly” and
“unmistakably” merely to indicate that exemptions are to be construed
narrowly—this is unquestionably the meaning of the passage in the Su-
preme Court’s opinion (Phillips)—and also that the burden of proof is
on the defendant, since entitlement to an exemption is an affirmative de-
fense. The phrases were then garbled (“affirmative evidence” implies
that there must be a concept of “negative evidence”), the garbled form
repeated, and the original meaning forgotten.
Even if understood as merely a clumsy invocation of the familiar prin-
ciple of statutory interpretation that exemptions from a statute that cre-
ates remedies should be construed narrowly, the “clear and affirmative
evidence” formula is unsatisfactory because the underlying principle is
mysterious. Why should one provision in a statute take precedence over
another? It shouldn’t. But if you go back to the origin of the formula
in the Phillips opinion—“to extend an exemption to other than those

19. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945).

 Is Pragmatic Adjudication Inescapable? 245

plainly and unmistakably within its terms and spirit is to abuse the in-
terpretative process and to frustrate the announced will of the people”—
you will see that the Court was merely cautioning that an exemption
should not be interpreted so broadly as to render the statutory remedy
ineffectual or easily evaded.
Many appellate cases, one might even say the typical such case, in-
volve a dispute over the scope or application of a rule; in Yi it was the
rule governing the defendant’s burden of proving entitlement to an ex-
ception from a statutory duty. The scope or application is likely to be un-
certain; otherwise the case would probably not have been brought, or if
brought probably would not have reached the appellate level.20 There are
two ways to determine whether a new case fits under a rule. The first is
to examine the extension of the rule—that is, to determine what in-
stances fall within its meaning (as you would gather meaning, knowing
nothing about the context, from a dictionary plus the rules for con-
structing English sentences), and then to determine whether the facts
of the case at hand correspond to one of those instances. The second
method, which is the pragmatic, is to determine the purpose of the
rule—almost always there is a discernible purpose—and then pick the
outcome that will accomplish that purpose. A purpose having been iden-
tified, the rule can be restated in practical rather than legalistic terms.
The search for the purpose carries the judge beneath the verbal surface
of the law to the social reality that the law is trying to shape. He must of
course try not to exaggerate the thrust of the statute by ignoring a legis-
lative compromise that may have blunted that thrust. He must save the
legislation from being undone by unforeseen contingencies rather than
improve it.
The question in Yi was whether the defendant was within an exemp-
tion for employers who pay their employees on a commission rather
than a salary basis. The answer required identifying the purpose of such
an exemption and then determining whether the defendant’s method of
compensating its employees accomplished that purpose. Neither step
was particularly controversial for the politically diverse panel (two judges
appointed by Republican Presidents, one by a Democratic President).
Many areas of consensus in the law today are ones in which economic
20. This is less true in criminal than in civil cases because in most criminal cases the defen-
dant is the appellant and is not paying for his lawyer, so he is under no economic pressure to
forgo a long-shot appeal.
246 The Model Elaborated

analysis provides a good account of what judges are doing, whether or

not they are conscious that what they are doing is economics. Cost-
benefit analysis—the economist’s method of determining what course of
action to follow—is simply a disciplined way of weighing the conse-
quences of alternative courses and choosing the one that is likely to pro-
duce the largest surplus of good over bad consequences. Remember that
when cases are difficult to decide it is usually because the decision must
strike a balance between two legitimate interests, one of which must
give way. Pragmatism is a better description of judicial behavior in these
areas than economics only because judges are more likely to recognize
themselves in a description of a pragmatist than in a description of an
economist, pragmatism being so deeply ingrained in American popular
and political culture.
Just as legal pragmatism incorporates economic analysis of law as one
of its methods, so, we must not forget, it incorporates legalism as an-
other. An example is insistence on jurisdictional niceties, such as that a
federal court must not adjudicate a case unless the case meets exacting
and sometimes quite arbitrary requirements concerning deadlines for
filing (for example, the requirement that in an appeal to a federal court
of appeals in a civil case to which the federal government is not a party,
the notice of appeal must be filed within 30 days of the final judgment
by the district court); that the parties must have a particular type of
stake in the case for it to be justiciable (the “standing” requirement);
that it be “ripe” and not “moot”; and so forth. The effect of the concepts
of standing, ripeness, mootness, and other legalist obstacles to decision
on the merits of a case is to delay judicial intervention in the affairs of
the nation, thus creating space for social experimentation. It would be
unpragmatic for a court to invalidate a program as unconstitutional or
otherwise unlawful before the program had a chance to prove its worth
empirically.
A related point is that the pragmatic judge is likely to favor narrow
over broad grounds of decision in the early stages of the evolution of a
legal doctrine. Deciding a case on a narrow ground is a corollary of an
empiricist or experimentalist orientation. The narrower the ground, the
less the judges are interfering with the challenged activity. The broader
the ground, the less scope the judges will have for obtaining from future
cases additional information bearing on the consequences of the activity,
 Is Pragmatic Adjudication Inescapable? 247

because the decision will be a precedent that until overruled or distin-

guished will rule new cases within its semantic domain, which may
be vast.
This last point underscores the difference between the pragmatist and
legal process approaches. The latter insists on the disciplining effect of
neutral principles—of the judge’s committing himself to a position that
will prevent him from deciding future cases in accordance with his polit-
ical preferences. (So a broad precedent is an example of a neutral princi-
ple.) Legal process is thus another example of legalism in the service of
pragmatism. The pragmatist who rejects the legal process approach ac-
cepts the value of neutrality and of the doctrine of precedent but worries
about premature commitment to a position with unforeseeable conse-
quences. He therefore commends not only the distinguishing of prece-
dents as a way of reaping the fruits of knowledge gained from fresh facts
revealed by new cases but also the refusing to cut off further inquiry by
laying down a broad principle in the first case in a line of cases. Would it
have been wise for the Supreme Court in Brown v. Board of Education to
have ruled flatly that the Constitution is colorblind and race therefore
may never be used by a public institution as a basis for action, thus rul-
ing out affirmative action by such institutions before it had been pro-
posed, let alone implemented? Wise or unwise, it would have been
unpragmatic.
Neutral principles are a legalist trace in a school (the legal process
school) that thought it had turned its back on legalism and was merely
tempering legal realism. With neutral principles as with originalism, the
past is allowed to rule the present and future. The neutral principle is
laid down on the basis of what is known today but establishes a commit-
ment for tomorrow, when much more may be known. Since the conse-
quences of a decision always lie in the future, legal pragmatism is for-
ward-looking. Adherence to precedent performs important functions,
but ultimately precedent, and thus the past, is servant rather than master
to the pragmatist. The value to him of the study of history lies less in di-
recting judgment than in identifying rules that have nothing to validate
them but a pedigree. Like the weakened descendants of overbred aristo-
crats, such rules are candidates for a critical reexamination that may lead
to their supersession. Pragmatic judges thus are historicist in the coun-
terintuitive sense of being alert to the possibility that a current legal doc-
248 The Model Elaborated

trine may be a mere vestige of historical circumstances and should be

discarded. Historical inquiry is like distinguishing; it is a search for dif-
ferences rather than for similarities.21
A key tenet of legal pragmatism is that no general analytic procedure
distinguishes legal reasoning from other practical reasoning. Law has a
special vocabulary, special concerns, special traditions. But the analyti-
cal methods used by judges are those of ordinary, everyday reasoning,
which is concerned with practical benefits and costs. Yi shows judges
moving beyond semantics to engage with the concrete interests pre-
sented by a case. At a deeper level legal pragmatism asks litigants and
their lawyers, along with judges and their law clerks, to go beyond ar-
gument—beyond “rhetoric” in the pejorative sense of verbal jousting
ungrounded in facts—to data: statistics, precise measurements, photo-
graphs, diagrams.
Judges are lawyers and bring to their judging the lawyer’s habitual ex-
aggeration of the power of argument, and thus of words, to resolve dis-
agreements. But they are less mesmerized by words than lawyers are22
because they have to choose between competing arguments that may be
finely balanced. They are not judging a debate, moreover; they are look-
ing for a sensible resolution and this pushes them to look beyond the
bickering of the lawyers to the concrete interests at stake.
Lawyers are like mathematicians in wanting to manipulate symbols,
albeit verbal instead of mathematical ones, rather than to investigate the
relevant phenomena, which are the social interactions that law regu-
lates. The greater the separation between legal language and the lan-
guage in which nonlawyers discuss social and personal issues, the easier
it is for lawyers and judges to think that their business is indeed to ma-
nipulate symbols rather than to engage with social reality. Bryan Garner’s
invaluable Redbook is a reminder—in its lists of “stuffy” words, plethoric
phrases, doublets (such as “cease and desist,” “free and clear”), dispens-

21. I amplify this concept of legal historicism in chapter 4 of my book Frontiers of Legal
Theory (2001).
22. Coffey v. Northeast Regional Commuter Railroad Corp., 479 F.3d 472, 478 (7th Cir.
2007), remarks “the curious and deplorable aversion of many lawyers to visual evidence and
exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a ver-
bal description. We have noted this aversion in previous cases, United States v. Boyd, 475 F.3d
875, 878 (7th Cir. 2007); Miller v. Illinois Central R.R., 474 F.3d 951, 954 (7th Cir. 2007); United
States v. Barnes, 188 F.3d 893, 895 (7th Cir. 1999)—once remarking [in the Barnes case] that
some lawyers think a word is worth a thousand pictures.”
 Is Pragmatic Adjudication Inescapable? 249

able legalese (“arguendo,” “gravamen,” “instant case,” “simpliciter,”

“nexus,” and the rest), and common words that bear a special meaning
in law (such as “appearance,” “consideration,” “constructive,”23 “pre-
sumption,” “servant,” etc.)24—of how easy it is to lose sight of reality in
a welter of verbiage.
I must not oversell pragmatism. It is not a machine for grinding out
certifiably correct answers to legal questions. It does not dissolve politi-
cal judging into policy science. It does not transform judges into expert
administrators and law into cost-benefit analysis. It acknowledges the
inevitability that like cases will often be treated inconsistently not only
because different judges weigh consequences differently depending on a
judge’s background, temperament, training, experience, and ideology,
which shape his preconceptions and thus his response to arguments and
evidence, but also because, for the same reasons, different judges see dif-
ferent consequences. Legal pragmatism accepts the empirical evidence
of the attitudinal school. And it sets no higher aspiration for the judge
than that his decisions be reasonable in light of the warring interests in
the cases, although a reasonable decision is not necessarily a “right” one.
But how, it may be asked, can a judge decide a case on any basis other
than belief in what the right decision is? That is the kind of question that
a law professor would be apt to ask. It forgets Aristotle’s warning against
demanding that an inquiry be conducted with a degree of rigor that the
type of inquiry does not permit. The judge does not choose his cases or
the sequence in which they are presented to him, or contrive a leisurely
schedule on which to decide them, unlike law professors, who choose
their topics and need not let go of a paper until satisfied that it is right.
Legalists place unrealistic demands on judges, who in our system should
often have the uncomfortable feeling of skating on thin ice without the
luxury of being able to defer decisions until certitude descends on them.
Although I am concerned more with pragmatism’s descriptive ade-
quacy than with its normative appeal, I cannot ignore the question of
its normative adequacy, because were it as repulsive a basis for judicial
action as its critics claim, it could not plausibly be imputed to our
judges. I disagree with the critics, but not because I think it demonstra-

23. That is, “constructed”: “constructive possession” means that someone who is not in
possession of a thing is treated by the law as if he were.
24. Bryan Garner, with Jeff Newman and Tiger Jackson, The Redbook: A Manual on Legal
Style, § 11 (2d ed. 2006).
250 The Model Elaborated

ble that pragmatic adjudication is “right.” Consider that most unprag-

matic decision, Clinton v. Jones,25 in which the Supreme Court refused to
grant President Clinton an immunity from Paula Jones’s suit for sexual
harassment that would last until his term of office ended. The Justices
should have realized that forcing the President to submit to a deposition
in a case about his sexual escapades would be political dynamite that
would explode and interfere with his ability to perform his duties. That
of course is what happened. But one cannot say that the Court was
“wrong” to find no basis in Article II of the Constitution for immunizing
a sitting President from suits that arise from acts that he committed be-
fore he took office. A basic principle of republican government is that of-
ficials are not above the law; how far to go in compromising that princi-
ple in recognition of political reality is a matter of judgment, not of legal
analysis in a conventional sense. So Clinton v. Jones was not “wrong.” Yet
a Court consisting of politically savvy Justices would have decided the
case the other way—and that, I am content to argue, would not have
been “wrong” either.
Some critics think that legal pragmatism lacks moral earnestness; that
it cannot bestow metaphysical cachet or universality or “objectivity” on
precious legal values such as freedom of speech.26 After all, did not Rich-
ard Rorty define pragmatism “as a doctrine of the relativity of normative
judgments to purposes served”?27 There is nothing to prevent pragmatic
judges from dressing their free-speech decisions in a rhetoric of moral
realism if doing so will make the decisions more effective. But critics of
legal pragmatism will not be satisfied with this response. They will argue
that if the reality of judicial decision making is pragmatic, then however
the judge chooses to articulate the grounds of his decision the danger
will remain that a pragmatic balancing of competing interests cannot
safeguard basic values.
The issue is brought into focus by recent controversies over limiting
civil liberties in response to the threat of terrorism, which the attacks of
September 11, 2001, taught us is acute. I have argued that the enhanced
danger of terrorism in an era of weapons of mass destruction warrants a

25. 520 U.S. 681 (1997).

26. See, for example, R. George Wright, “Pragmatism and Freedom of Speech,” 80 North
Dakota Law Review 103 (2004).
27. Richard Rorty, “Dewey between Hegel and Darwin,” in Rorty and Pragmatism: The Phi-
losopher Responds to His Critics 1, 15 (Herman J. Saatkamp, Jr., ed. 1995).
 Is Pragmatic Adjudication Inescapable? 251

curtailment, albeit a modest one, of existing civil liberties.28 But by thus

failing to give civil liberties lexical priority over competing interests,
such as national security, the pragmatist cannot resist a gradual curtail-
ment of those liberties that has no fixed stopping point. The pragmatist
might reply that if we want to entrench civil liberties against any modi-
fication based on safety or other concerns, the proper entrenching tool is
a constitutional amendment rather than a judicial interpretation of the
Bill of Rights. But issues of delay and feasibility to one side, constitu-
tional entrenchment can be overkill, creating an insuperable barrier to
rethinking the proper scope of civil liberties in light of an emergency sit-
uation unforeseen when the Constitution was amended.
A better reply is that judges who want to curtail civil liberties have at
hand legalist tools as powerful as those used by civil libertarians. The
Constitution is full of contradictions and ambiguities, sources of endless
contestation. In the case of national security, against arguments based on
the language of the Bill of Rights can be deployed arguments based on
the language of Article II, which confers on the President primary au-
thority to conduct the nation’s foreign affairs, command of the armed
forces, and the duty to enforce the nation’s laws. Legalism won’t resolve
such disputes. Trying to banish pragmatism must fail because it cannot
be banished. The only effect of trying to banish it would be to make
judges even less candid than they are.
But the objection to pragmatism’s lack of moral earnestness goes deeper
than I have acknowledged. It can be understood sympathetically as dis-
tress at the thought that judges often make life-and-death decisions (lit-
erally so in capital cases) without warranted confidence that what they
are doing is “right” in a strong sense of the word. Pragmatists seem to
have a casual attitude toward truth, especially moral truth, as when
Holmes said that what is true is simply what he could not help believing
or that the test of truth is how well it “sells” in the marketplace of ideas.
Jerome Frank was wrong to think that judges’ craving for certitude is in-
fantile (see chapter 4); it is the consequence of the natural anxiety that
decent people feel when they find themselves exercising power over
other people and therefore want very much to think that their exercise
of that power is just. But critics of pragmatism lack the tools to allay that

28. Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency
(2006).
252 The Model Elaborated

anxiety. All that they can offer judges is a rhetoric of certitude. (Rhetoric
in a different sense—the Aristotelian sense, noted in chapter 3, of the
methodology for resolving issues that cannot be resolved by exact in-
quiry—is congenial to, perhaps even fundamental to, Holmes’s pragma-
tism.29)
Some critics argue that legal pragmatism breeds cynicism about law
that in turn induces intellectual laziness in students, law professors,
lawyers, and, most ominously, judges. The legal pragmatist is said to be
unwilling to invest significant time and effort in learning the rules of law
and the methods of legal reasoning because he regards these things as
obstacles to getting to the point, the point being to weigh consequences.
That is incorrect. The law student must learn to pay careful attention to
the conventional materials, specialized vocabulary, and other resources
and techniques developed by the legal profession over millennia. He
must learn these things en route to transcending them. But transcend
them (or at least begin the process of transcending them) he must. He
must be disabused of the notion that “the law” is a set of propositions
written down in a book and legal training consists simply of learning
how to find the correct place in the book. That is what laypeople think
and some judges pretend to think. In our system the law as it is enforced
in courts is created by judges, using legal propositions as raw materials.
Lawyers must learn how to assist judges in that creative activity. That re-
quires more than beating judges about the head with snatches of legalese
(such as “clear and affirmative evidence”) taken from statutes and judi-
cial opinions.
Legal pragmatism is said by its critics to allow, invite, or even com-
mand judges to decide cases however they want. By loosening the con-
straints of text and doctrine, the criticism continues, pragmatism turns
judges into loose legislative cannons and expands the area of judicial in-
determinacy to all cases. Not so. Judges are less likely to be drunk with
power if they realize they are exercising discretion than if they think
they are just a transmission belt for decisions made elsewhere and so
bear no responsibility for any ugly consequences of those decisions.
Legalists, sometimes hypocritically, sometimes unconsciously, smuggle
their political preferences into their decisions but seek to deflect blame

29. Robert Danisch, Pragmatism, Democracy, and the Necessity of Rhetoric, ch. 4 (2007).
 Is Pragmatic Adjudication Inescapable? 253

for any resulting cruelties or absurdities by pleading that the law made
them do it.
Legislation reflects the preferences of legislators, and think how those
preferences are formed (even setting aside pressure from constituents).
They are formed by each legislator’s values, temperament, life experi-
ences, and conception of the scope and limits of the legislative function.
And likewise in the case of the judge as legislator. But stated as a criti-
cism, this ignores not only the possibility of weighing consequences in a
dispassionate and even predictable manner in areas of consensus, but
also the material, psychological, and institutional constraints on prag-
matic as on other judges (more precisely, on judges when they are be-
ing pragmatic). Judges are subject to forcible removal from office for
dereliction of duty; their decisions can be nullified by legislative or con-
stitutional amendment; the process of selecting judges tends to exclude
those who are the most power hungry, the most “political,” the farthest
out of the mainstream; and the system of compensation and the rules
concerning conflicts of interest subject judges to “flat” incentives—that
is, incentives not tied to the outcome of the particular cases they are
called upon to decide—so that a powerful potential source of bias is re-
moved. If the judge is a legislator, at least he is a disinterested one.
The good pragmatist judge, we know, is not a shortsighted pragmatist.
He is not a philosophical pragmatist. But he is a constrained pragmatist.
We know from previous chapters that judges in our system operate un-
der both internal and external constraints. That is as true of pragmatic
judges as it is of legalist judges. There are many consequences of a deci-
sion that a pragmatic judge cannot properly take into account. The issue
is sharply focused by Bush v. Gore.30 Suppose a Justice thought that Gore
had the better of the legal case, but that Bush would be a better Presi-
dent. The Justice might conclude that all things considered, a decision
in favor of Bush would have better consequences than a decision in favor
of Gore. Yet it would be improper for the Justice to consider the relative
merits of Bush and Gore as presidential aspirants. It would violate the
rule, basic to corrective justice, that cases must be decided “without re-
spect to persons.” The pragmatic judge must play by the rules of the ju-
dicial game, just like other judges. The rules permit the consideration of

30. 531 U.S. 98 (2000).

254 The Model Elaborated

certain types of consequence but forbid the consideration of other types.

They limit the judge to being, by analogy to rule utilitarianism, a “rule
pragmatist.”31
The difference between a constrained and an unconstrained pragma-
tist is well illustrated by Jerome Frank in his twin roles as bomb-throwing
legal realist and Second Circuit judge. He did not abandon legal realism
on the bench, but he curbed it; his judicial opinions are well within the
mainstream.32
Judge Michael McConnell, the originalist whom we met in chapter 7,
claims that “the real points of division [between legalists and pragma-
tists] relate to how strictly or loosely judges read the constraints [of le-
galism], and whether in the remaining gray areas they defer to demo-
cratic judgment or give play to their own ideological commitments.”33
He is right that “how strictly or loosely judges read the constraints” of
legalism is a difference between the legalist and the pragmatist; legal-
ists, for example, are more likely to remain on the semantic surface of a
statute than to try to figure out its purpose. But whether “in the remain-
ing gray areas [judges] defer to democratic judgment or give play to
their own ideological commitments” is not a real difference. The origi-
nalist’s tiebreaker is not democracy (see chapter 11). Who except the
self-deluded believe that “ideological commitments” play a significantly
smaller role in the decisions of legalists, such as the four most conserva-
tive Supreme Court Justices, than in those of quasi-pragmatists, such as
Justice Breyer?34
Even if the objections to legal pragmatism are stronger than I think

31. See Melissa Armstrong, “Rule Pragmatism: Theory and Application to Qualified Immu-
nity Analysis,” 38 Columbia Journal of Law and Social Problems 107 (2004); Posner, The Prob-
lematics of Moral and Legal Theory, note 1 above, at 241.
32. See Robert Jerome Glennon, The Iconoclast as Reformer: Jerome Frank’s Impact on Ameri-
can Law, ch. 5 (1985).
33. Michael W. McConnell, “Active Liberty: A Progressive Alternative to Textualism and
Originalism?” 119 Harvard Law Review 2387, 2415 (2006), reviewing Justice Breyer’s book Ac-
tive Liberty, which I discuss in chapter 11.
34. Rorie Spill Solberg and Stefanie A. Lindquist, in “Activism, Ideology, and Federal-
ism: Judicial Behavior in Constitutional Challenges before the Rehnquist Court, 1986–2000,”
3 Journal of Empirical Legal Studies 237 (2006), find a slightly higher degree of self-restraint on
the part of conservative Justices, but conclude that, in general, “where liberal statutes are chal-
lenged, regardless of whether they emerge at the state or federal level, conservatives tend to be
more likely to strike down those statutes. The opposite is true for conservative statutes.” Id. at
259–260.
 Is Pragmatic Adjudication Inescapable? 255

they are, there is no alternative in the United States of the twenty-first

century. America’s judicially enforceable Constitution; its common law
heritage; its undisciplined legislatures (a product in part of the weakness
of political parties in the United States and in part of bicameralism and
the presidential veto, which together make it extremely difficult to enact
legislation unless it is left vague); the sheer complexity of the American
legal system (the federal Constitution layered over federal statutes and
the whole layered over the legal systems of the 50 different states)—all
these things compound with the heterogeneity of the judges, and the re-
lated fact that judging in the United States is not a career but a position
to which middle-aged lawyers are appointed after a career as a practicing
lawyer, professor, or prosecutor, to create an immense irreducible do-
main of discretionary lawmaking. And many judges owe their appoint-
ments to political connections, to being at least on the outskirts of poli-
tics. Legalism is not a straitjacket that can be put on these worldly
judges, and anyway has no resources to guide the making of new law as
distinct from the ascertainment of the old, for it denies that lawmaking
is a legitimate task of judges.
Lateral entry deserves emphasis not only as a factor contributing to
the heterogeneity of the judiciary but also as a reflection of the fluidity of
American professional and intellectual life, which fosters legal pragma-
tism—as it does philosophical pragmatism—and helps stamp both as
distinctively American movements. The legal profession in the United
States is not compartmentalized; lawyers move freely among private
practice, government service, law teaching, and judging. Nor is the pro-
fession sealed off from the rest of American intellectual life. It is perme-
able to developments in other departments of social thought, such as
economics. John Dewey and other pragmatic philosophers were able to
take as the model for all inquiry the methods of the natural sciences be-
cause American thought is not tightly bulkheaded. The permeability of
professional cultures to outside influences is an antidote to the develop-
ment of a parochial judicial culture in which law is an autonomous sys-
tem of thought, isolated from the practice of law, the social sciences, and
the commercial and political life of the nation.
The heterogeneity of the judiciary encourages a proliferation of varied
insights and retards group polarization, and at the same time anchors
law more firmly in durable public opinion. This is both cause for and
justification of the elaborate screening of judicial candidates for ideolog-
256 The Model Elaborated

ical predisposition and ethnic and other group identity, as well as for
professional competence. But diversity comes at a price. The greater the
judiciary’s diversity, the more disagreement, dissent, and distinguishing
of cases (and hence the less adherence to precedent and therefore the
less legal certainty), and the less uniformity across appellate panels.
These costs have to be traded off against the epistemic value of diversity
or, equivalently, the costs of confining deliberation to the like-minded.35
But all this said, are American judges really predestined to be pragma-
tists? Can we trust Karl Llewellyn (see chapter 8), or was he just finding
what he was looking for? The rhetoric of judicial opinions is predomi-
nantly legalistic; and the attitudinal school’s discovery of a wide political
streak in American judging does not make the case, because political
judging could be the work of an ideologue rather than a pragmatist.
We can gain some insights into the issue from the critical literature on
judges.36 From it we learn for example that Brandeis’s judicial decisions
“were not determined by a uniquely ‘juristic’ set of values, but by gener-
alized articles of social, economic, and political faith that derived as
much from the gleanings of literature, history, and social sciences as
they did from the study of law,”37 and that political judging characterized
the Second Circuit even under the revered leadership of Learned Hand.38
From judicial biographies and the expanding list of book-length exposés
of the Supreme Court we can learn (if we are so naïve as not to realize it
already) that judges at all levels are all too human.
But a neglected literature that I particularly wish to emphasize is writ-
ing by judges on judging.39 In a previous chapter I quoted Learned Hand
35. Harry T. Edwards, “The Effects of Collegiality on Judicial Decision Making,” 151 Uni-
versity of Pennsylvania Law Review 1639, 1667 (2003). Cass R. Sunstein et al., Are Judges Politi-
cal? An Empirical Analysis of the Federal Judiciary (2006), emphasizes the benefits of diversity
in insight and whistle-blowing, and the costs of uniformity in group polarization and ideologi-
cal amplification—products of overconfidence from being among like-minded people and thus
never challenged, never forced to reflect critically on one’s beliefs.
36. Exemplified by G. Edward White, The American Judicial Tradition: Profiles of Leading
American Judges (expanded ed. 1988).
37. Stephen W. Baskerville, Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz
Brandeis 274 (1994).
38. Marvin Schick, Learned Hand’s Court (1970).
39. For a comprehensive bibliography of such writings, see Judges on Judging: Views from
the Bench 305–323 (David M. O’Brien ed., 2d ed. 2004). And for a massive anthology of writ-
ings by judges as well as academics about judging, see Ruggero J. Aldisert, The Judicial Process:
Readings, Materials and Cases (2d ed. 1996). There is also the occasional testimony of former
law clerks. See, for example, Stephen L. Wasby, “‘Why Clerk? What Did I Get out of It?’” 56
 Is Pragmatic Adjudication Inescapable? 257

on judging and I have referred to two famous works by Holmes in this

one; there is additional evidence of Holmes’s judicial pragmatism in
other writings of his, including letters and judicial opinions.40 There are
Cardozo’s writings about judging, most famously his book The Nature of
the Judicial Process (1921), “the fullest statement of a jurisprudence of
pragmatism that we possess.”41 There is Judge Hutcheson’s article on de-
cision by hunch, from which I took the epigraph in the introduction,
surprisingly echoed by Supreme Court Justice Anthony Kennedy in a re-
cent interview:
You know, all of us have an instinctive judgment that we make. You
meet a person, you say, “I trust this person. I don’t trust this person. I
find her interesting. I don’t find him interesting.” Whatever. You make
these quick judgments. That’s the way you get through life. And judges
do the same thing. And I suppose there’s nothing wrong with that if it’s
just a beginning point. But after you make a judgment, you then must
formulate the reason for your judgment into a verbal phrase, into a ver-
bal formula. And then you have to see if that makes sense, if it’s logical,
if it’s fair, if it accords with the law, if it accords with the Constitution, if
it accords with your own sense of ethics and morality. And if at any
point along this process you think you’re wrong, you have to go back
and do it all over again. And that’s, I think, not unique to the law, in
that any prudent person behaves that way . . . I think that maybe the
qualities for achievement in my field are not different—much differ-
ent—than any others. Number one: Knowing yourself, and being hon-
est about your own failings and your own weakness. Number two: To
have an understanding that you have the opportunity to shape the des-
tiny of this country. The framers wanted you to shape the destiny of the
country. They didn’t want to frame it for you.42

There is Jerome Frank’s book, Courts on Trial: Myth and Reality in

American Justice (1949), written after he became a federal court of ap-
Journal of Legal Education 411, 426 (2006), remarking that one “litigator’s strong belief that ‘it
is facts more than law which decides cases’ really started during his clerkship year, ‘when I saw
that application of law to facts was much more complex, subtle, and fact-oriented than I had
imagined.’”
40. See The Essential Holmes, note 6 above, and the references to Holmes in the books cited
in note 1 above.
41. Richard A. Posner, Cardozo: A Study in Reputation 28 (1990).
42. “Anthony Kennedy Interview,” Academy of Achievement: A Museum of Living His-
tory, Oct. 22, 2006, [Link]/autodoc/page/ken0int-3,int-5 (visited May 16, 2007)
(emphasis added).
258 The Model Elaborated

peals judge but repeating many of the realist heresies of his earlier and
better-known book Law and the Modern Mind (1930). Frank’s distin-
guished rival on the Second Circuit, Charles Clark, articulated a prag-
matic philosophy of judging, remarking that “only by recognizing the
lonely responsibility of the judge as a legislator, and the inevitable sub-
jective nature of his perception, can we hope to find ways and means of
harnessing that subjectivity to the service of society, present and fu-
ture.”43 Similar sentiments have been expressed by a host of other distin-
guished judges, including Walter Schaefer,44 Henry Friendly,45 Albert
Tate,46 Roger Traynor,47 and Frank Coffin.48 Justice, later Chief Justice,
Harlan Fiske Stone said that “within the limits lying between the com-
mand of statutes on the one hand and the restraints of precedents and
doctrines, by common consent regarded as binding, on the other, the
judge has liberty of choice of the rule which he applies, and his choice
will rightly depend upon the relative weights of the social and economic
advantages which will finally turn the scales of judgment in favor of one
rule rather than another. Within this area he performs essentially the
function of the legislator, and in a real sense makes law.”49
I wish our current Justices were as candid as Stone, or as Judge Patri-
cia Wald when she said that “our colleagues are our colleagues as a re-
sult of politics. The kind of controlling precedent the Supreme Court

43. Charles E. Clark and David M. Trubek, “The Creative Role of the Judge: Restraint and
Freedom in the Common Law Tradition,” 71 Yale Law Journal 255, 275–276 (1961). See also
Procedure: The Handmaid of Justice: Essays of Judge Charles E. Clark (Charles A. Wright and
Harry M. Reasoner eds. 1965). Clark and Trubek, above, at 267, perceptively remark that Karl
Llewellyn exaggerated the degree to which judges can attain certainty in difficult cases by the
use of “realist” methods. We shall encounter similar exaggerations in chapter 12 in discussing
the realist jurisprudence of David Beatty.
44. Walter V. Schaefer, “Precedent and Policy,” 34 University of Chicago Law Review 3
(1966).
45. Henry J. Friendly, Benchmarks (1967).
46. Albert Tate, Jr., “The Law-Making Function of the Judge,” 28 Louisiana Law Review 211
(1968); Tate, “Forum Juridicum: The Judge as a Person,” 19 Louisiana Law Review 438 (1959).
47. Roger J. Traynor, The Traynor Reader: A Collection of Essays by the Honorable Roger J.
Traynor (1987).
48. See Frank M. Coffin, The Ways of a Judge: Reflections from the Federal Appellate Bench
(1980), and, even better, Coffin, On Appeal: Courts, Lawyering, and Judging (1994), especially
chs. 13 and 14.
49. Harlan F. Stone, “The Common Law in the United States,” 50 Harvard Law Review 4, 20
(1936).
 Is Pragmatic Adjudication Inescapable? 259

hands down to lower courts reflects the makeup of that court and has
been determined, in large part, by the politics of the nomination and
confirmation process . . . The values by which judges make choices in ar-
eas of discretion will more often than not be in sync with that section of
the political spectrum they inhabited in their former lives.”50 Professor
David Klein has gathered additional references along these lines,51 and
J. Woodford Howard offers the following judicious summary based on
extensive interviews with federal court of appeals judges: “The short of
it is that federal intermediate courts tended to attract political lawyers
who by vocation and training fused elements of political and legal cul-
ture in appellate adjudication.”52
Judge Friendly’s former law clerk and good friend Michael Boudin,
himself a distinguished federal court of appeals judge, has listed the ele-
ments of Friendly’s distinction. He mentions the “experience of a prac-
ticing lawyer who had spent three decades addressing real-world prob-
lems” and who “rivaled Justice Robert Jackson [a great pragmatic judge]
in giving readers the sense that his decisions were grounded in reality.”53
He quotes Friendly’s advice that “on the whole it may be better that the
[Supreme] Court should plot a few reference points, even on what may
be largely an intuitive basis, which can be erased if they prove unwise,
before it attempts to project a curve to which all future determina-
tions must conform.”54 He remarks on Friendly’s view that “a judge’s first
take is often an intuitive response” to the “diverse pressures” that a case
exerts on a judge—pressures “to conform to precedent, to do justice, to
achieve a socially useful result.” Boudin sums up the influences that
shaped Friendly’s judging as “his training as a historian and respect for
precedent, a dose of legal realism, a pragmatic interest in outcomes, a re-
50. Patricia M. Wald, “Some Real-Life Observations about Judging,” 26 Indiana Law Review
173, 180 (1992). Judge Wald unsurprisingly describes herself as a pragmatist. Id. at 181.
51. David E. Klein, Making Law in the United States Court of Appeals 15–16 (2002). Klein’s
excellent book also contains numerous interviews with federal circuit judges, speaking anony-
mously and presumably therefore with more candor than usual. Another fine book, employing
the same methodology, is J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial Sys-
tem: A Study of the Second, Fifth, and District of Columbia Circuits (1981).
52. Howard, note 51 above, at 188.
53. Michael Boudin, “Judge Henry Friendly and the Mirror of Constitutional Law” 11
(forthcoming in New York University Law Review).
54. Id. at 17, quoting Henry J. Friendly, The Dartmouth College Case and the Public-Private
Penumbra 31 (1969).
260 The Model Elaborated

spect for legal process, an insistence on relative competence, a sense of

what is practical, and a concern with judicial overreaching.”55
This is the portrait of a pragmatic judge sensitive to the institutional
as well as the substantive consequences of judicial decision making.
And, speaking of Justice Jackson, as Boudin did, recall from chapter 4
Frederick Schauer’s redescription of Jerome Frank’s brand of legal real-
ism: “an attempt to lessen the distance, descriptively and prescriptively,
between how a judge as a human being and that same human being
clothed in judicial robes would resolve a controversy.” That attempt gets
close to the heart of legal pragmatism, as in the following description of
Justice Jackson’s opinion-writing style: “Jackson never seemed to be
searching for the proper ‘judicial’ stance or tone in his opinions. Instead,
he appeared capable of expanding the stylistic range of opinion writing
to accommodate his human reactions . . . The distance between judges
and mortals was suddenly shortened.”56
Llewellyn collected many choice examples of judicial self-reflection
from different eras. I quote a few: “No precedent is of such force as
resoun [right sense].”57 “Every lawyer knows that a prior case may, at the
will of the court, ‘stand’ either for the narrowest point to which its hold-
ing may be reduced, or for the widest formulation that its ratio decidendi
[reason for deciding] will allow.”58 “What is new in juristic thought to-
day is chiefly the candor of its processes. Much that was once unavowed
and kept beneath the surface is now avowed and open. From time imme-
morial lawyers have felt the impulse to pare down the old rules when in
conflict with the present needs. The difference is that even when they
yielded to the impulse, it was their habit in greater measure than today
to disguise what they were doing, to disguise the innovation even from
themselves, and to announce in all sincerity that it was all as it had been
before.”59 “In talking to the [state] Chief Justices I [Llewellyn] found
only about a third (including, and this gave me comfort, all but one out

55. Boudin, note 53 above, at 23.

56. White, note 36 above, at 232. Chapter 11 of White’s book is a superb discussion of Jack-
son.
57. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 52 n. 46 (1960).
58. Id. at 117.
59. Id. at 266–267, quoting Cardozo, “Jurisprudence,” in Selected Writings of Benjamin Na-
than Cardozo: The Choice of Tyco Brahe 7, 37 (Margaret E. Hall ed. 1947).
 Is Pragmatic Adjudication Inescapable? 261

of the youngest third) who could recognize that I was telling truth about
what they were doing, daily. There was even one who had been made to
see that he ‘had been doing, all along, exactly what he didn’t want to’;
but who guessed, wryly, that he would go on doing it.”60 And here is a
quotation for the legalists: “A strong opinion [is] one in which by the
employment of pure legal reasoning one arrived inescapably at a conclu-
sion which no layman could possibly have foreseen.”61
One can even reach back to Justice Joseph Story of the early-nineteenth-
century Supreme Court, who, admonishing the lawyer to “accomplish
himself for his duties by familiarity with every study,” said that the law-
yer “will thus be taught to distrust theory, and cling to practical good; to
rely more upon experience, than reasoning; more upon institutions,
than laws; more upon checks to vice, than upon motives to virtue. He
will become . . . more wise, more candid, more forgiving, more disinter-
ested.”62 One can reach across the seas to other Anglo-American judicia-
ries and find similar sentiments expressed by their judges.63
Of particular note is the pragmatist strain in the age of classic Ameri-
can legal formalism, which William Wiecek dates from 1886 to 1937.64
What I am calling legalism was indeed the official, the establishment,
conception of judicial behavior. Yet Brian Tamanaha has compiled a
wonderful assortment of contemporaneous statements indicative of a
strong undertone of skepticism.65 We read that “it is useless for judges to
quote a score of cases from the digest to sustain almost every sentence,
when every one knows that another score might be collected to support
the opposite ruling . . . He writes, it may be, a beautiful essay upon the
law of the case, but the real grounds of decision lie concealed under the

60. Llewellyn, note 57 above, at 392.

61. Id. at 39 n. 31.
62. Joseph Story, Discourse Pronounced upon the Inauguration of the Author, as Dane Professor
of Law in Harvard University 34–35 (1829).
63. See, for example, E. W. Thomas, The Judicial Process: Realism, Pragmatism, Practical
Reasoning and Principles (2005); Tom Bingham, The Business of Judging: Selected Essays and
Speeches, ch. 2 (2000); David Robertson, Judicial Discretion in the House of Lords (1998); John
Bell, Policy Arguments in Judicial Decisions (1983).
64. William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in
America, 1886–1937 (1998).
65. The quotations that follow are from Brian Z. Tamanaha, “The Realism of the ‘Formalist’
Age” (St. John’s University School of Law, Aug. 2007).
262 The Model Elaborated

statement of facts with which it is prefaced.”66 A judge is quoted as say-

ing that “what is called legal sense is often the rankest nonsense,”67 and
the president of the American Bar Association as saying that “our courts
can generally find precedents for almost any proposition.”68
The first of these quotations is from an article published in 1881, the
same year that Holmes published The Common Law. The novelty of
Holmes’s criticism of legalism was that he thought it inevitable, and thus
not particularly reprehensible, that judges should be occasional legisla-
tors rather than full-time rule appliers, though he also thought that if
they were more self-conscious about what they were doing they would
be more restrained.
The distinction of most of the judges whom I have quoted or men-
tioned is notable, but more notable still is that they should confess prag-
matism despite the allure of being able to pose as a discerner rather than
a creator of law, for that is the less controversial position and also flat-
ters the laity’s ignorant expectation of what a judge is supposed to do.
Judges’ writing on judging, as well as what they say in interviews, espe-
cially when speaking off the record,69 is striking for the infrequency of
legalist manifestos. There are some,70 of course, but many of them have
an air of embattlement, of swimming against the tide, and sometimes
of apology and qualification, as in Justice Scalia’s revealingly entitled ar-
ticle “Originalism: The Lesser Evil.”71 He confesses himself a “faint-
hearted” originalist and assures the reader that he would not counte-
nance flogging even though on an originalist construal it is not a cruel
and unusual punishment.72 He made a further confession of faintheart-

66. W. G. Hammond, “American Law Schools, Past, and Future,” 7 Southern Law Review
400, 412–413 (1881). Hammond was the dean of the St. Louis Law School.
67. Seymour D. Thompson, “More Justice and Less Technicality,” 23 American Law Review
22, 48 (1889).
68. U. M. Rose, “American Bar Association,” 64 Albany Law Journal 333, 336 (1902).
69. See note 51 above.
70. See, for example, J. Harvie Wilkinson III, “The Role of Reason in the Rule of Law,” 56
University of Chicago Law Review 779 (1989); Antonin Scalia, “The Rule of Law as a Law of
Rules,” 56 University of Chicago Law Review 1175 (1989); Judges on Judging, note 39 above, chs.
13, 15, 16, 18, 20, 22. I have mentioned Judge McConnell; I discuss his views further, and
those of other judges as well, in subsequent chapters.
71. Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law School
849 (1989).
72. Id. at 861, 864—for which he was criticized by Judge Easterbrook, perhaps the least
 Is Pragmatic Adjudication Inescapable? 263

edness in another article: “We will have totality of the circumstances

tests and balancing modes of analysis with us forever—and for my sins, I
will probably write some of the opinions that use them. All I urge is that
those modes of analysis be avoided where possible.”73
Maybe distinguished judges are readier than others to confess prag-
matism (even if it is only occasional pragmatism, as in the case of Jus-
tice Scalia) because their distinction insulates them from the criticism
that a lesser heretic would invite, or because the distinguished judge is
more likely to be an occasional legislator than his less distinguished col-
leagues and so more likely to realize that judging at its most demanding
is a pragmatic activity.
A final question is how well legal pragmatism, which along with con-
stitutional law is the distinctive American contribution to jurisprudence
(though with English roots—the English philosophical tradition is em-
piricist; the common law, which we got from England, is pragmatic; and
remember Blackstone on statutory interpretation), travels. Perhaps not
well, at least outside English-origin jurisdictions.74 Continental Euro-
pean judges are more legalistic than American or English ones. The Eu-
ropean (civil law) legal systems, and the European systems of govern-
ment more broadly, have been constructed along lines that greatly limit
judicial discretion and hence departures from legalism. The judicial ca-
reer attracts the type of person who is comfortable in a bureaucracy, and
it breeds in him once there habits of obedience to directives and other
authoritative texts. Bureaucratic administration is government by writ-
ten rules. Continental Europe does not have the common law and until
recently did not have judicial review of the constitutionality of statutes,
and so judges’ legislative scope was severely truncated.
European governments tend moreover to be highly centralized. Power
is concentrated in parliaments that are functionally unicameral and en-
act legal codes that are clearer than most of our statutes. There are fewer
gaps, overlaps, inconsistencies, and ambiguities. Most European courts

fainthearted judicial defender of legalism. Frank H. Easterbrook, “Abstraction and Authority,”

59 University of Chicago Law Review 349, 378 n. 92 (1992).
73. Scalia, note 70 above, at 1187 (emphasis added).
74. Robertson, note 63 above, at 401, argues powerfully that “the ideology” of England’s
highest court “is one of pragmatism, indeed the sort of pragmatism that is unable to conceive
that it is an ideology.”
264 The Model Elaborated

are specialized (labor courts, criminal courts, etc.), and specialists tend
to share the premises of analysis and decision, enabling them to derive
conclusions by logical processes. Specialist courts also do not have to
worry about adapting the rules and principles of one area of law to an-
other. American judges at this moment are wrestling with adapting our
normal law of criminal procedure to the special challenges presented by
the struggle against international terrorism. They are rebalancing public
safety and civil liberties in light of the perceived increase in danger. A
European nation can if it wants deal with the problem by establishing a
special court for terrorist cases. (We could do that too, but it would be a
departure from the American tradition of generalist judges.) The judges
of such a court could formulate doctrine for their specialized jurisdic-
tion without having to rethink broader principles.
Because the United States does not have the institutions that make a
career judiciary feasible, legalism is not available to us as an overall judi-
cial strategy. Is this a bad thing? That is a huge question. We saw in
chapter 5 that our courts protect property rights, a cornerstone of free-
dom and prosperity, as well as European judiciaries do. Their judges are
more disciplined than ours, more closely supervised, but being career
judges less comfortable with commercial and other economic issues
than our judges are. Specialization may be only a partial cure. The spe-
cialized judge who focuses on commercial cases presumably learns a
great deal about the subject area in his judicial career, but this learning
may not be a perfect substitute for direct participation in the commercial
life of the nation as a practicing lawyer.75 On the other hand, although
good statistics are lacking, there is no doubt that the United States
spends more money per capita on its legal system than the countries
with which we like to compare ourselves. Unfortunately, there are no
data that would permit a determination of whether the benefits that our
system generates exceed its heavy costs. All that can be said is that if
judges are too much alike in background, politics, values, and other per-
sonal characteristics that influence judicial decision making in the gap-
ing open area created by our constitutional structure and political cul-
ture, pragmatic judgments will rest on a thin base of knowledge and
75. On the pros and cons of judicial specialization generally, see the thorough discussion in
Edward K. Cheng, “The Myth of the Generalist Judge: An Empirical Study of Opinion Special-
ization in the Federal Courts of Appeals” (Brooklyn Law School, May 10, 2007).
 Is Pragmatic Adjudication Inescapable? 265

insight, while if judges are too different from one another, their deci-
sions will fail to create a stable, intelligible pattern and people will be
able only to guess what their legal obligations are. One can hope that the
tough screening of federal judicial candidates is truncating the distribu-
tion of personality and opinion enough to ensure the necessary mini-
mum of homogeneity but not so much as to eliminate a nourishing vari-
ety of opinion and experience.
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III

Justices
This page intentionally left blank
10

The Supreme Court Is a

Political Court

I have suggested that American judges are predestined to be pragmatists.

But a more illuminating description of the Justices of the U.S. Supreme
Court, particularly when they are deciding issues of constitutional law,
is that they are political judges, as I shall argue with reference primar-
ily to cases decided in the Court’s 2004 term, the last term before the
Court changed direction as a result of the replacement of Rehnquist and
O’Connor by Roberts and Alito. But political judges are pragmatists if
what is driving them is, as I believe it mainly is, the political conse-
quences of their decisions.
I begin with a neglected factor in discussions of the politicization
of the Court—the extraordinary growth in the ratio of lower-court to
Supreme Court decisions. The Court can no longer control the lower
courts by means of narrow, case-by-case determinations—the patient,
incremental method of the common law. It must perforce act legisla-
tively. In 2003 the federal courts of appeals decided 56,396 cases, com-
pared to only 3,753 in 1960. State courts of last resort decided more than
25,000 cases in 2002,1 an unknown but probably substantial percentage
of which presented a federal question, if one may judge from the fact
that 13 percent of state supreme court decisions in the late 1960s—
when constitutional law was not yet ubiquitous—concerned the federal
constitutional rights of criminal defendants.2 State intermediate appel-
late courts decided more than 130,000 cases in 2003. What percentage

1. Shauna M. Strickland, Court Statistics Project Staff, State Court Caseload Statistics, 2004
105 (2005) (tab. 1).
2. Robert A. Kagan et al., “The Business of State Supreme Courts, 1870–1970,” 30 Stanford
Law Review 121, 147 n. 63 (1977).

269
270 Justices

were final decisions that raised issues of federal law and therefore were
reviewable by the U.S. Supreme Court is unknown. So one cannot say
how many cases reviewable by the Supreme Court the state courts de-
cided in either period and therefore compute the percentages of those
cases in which the Court granted certiorari. But one can compare the
percentage of federal court cases in which the Court granted certiorari in
2004—0.11 percent (64 ÷ 56,396)—with the corresponding percentage
in 1960—1.6 percent (60 ÷ 3,753). The comparison indicates that the
Court reviewed, in relative terms, almost 15 times as many federal court
cases in 1960 as in 2004.
Granted, many of the cases terminated in the federal courts of appeals
are not even remotely plausible candidates for further review, having
been consolidated, abandoned, or dismissed because of obvious juris-
dictional defects. If attention is confined to cases that the Administrative
Office of the U.S. Courts classifies as terminated “on the merits” or (the
corresponding, though not identical, classification in 1959) “after hear-
ing or submission,” the figures of 56,396 and 3,753 in the preceding
paragraph shrink to 27,009 and 2,705, and this adjustment changes the
percentage of federal court of appeals decisions reviewed by the Su-
preme Court from 0.13 percent and 1.7 percent in 2004 and 1960, re-
spectively, to 0.27 percent and 2.4 percent. Nevertheless the difference
remains striking: the Court in 1960 decided, in relative terms, almost
nine times as many federal cases as it decided in 2004.
The Court has long emphasized that it is not in the business of cor-
recting the errors, as such, of the lower courts; cases that come to it have
already had at least one tier of appellate review. The statistics make plain
that the Court is indeed out of the error-correction business, and this is a
clue to how far it has departed from the conventional model of appellate
adjudication and should prepare us to accept the Court’s basically legis-
lative character. If the Court tried to make law the common law way—
that is, in tiny incremental steps, which is a form of legislating but one
remote from how legislatures proceed—it would have little control over
the development of the law; it would be deciding too few decisions to
provide significant guidance to the lower courts. So the Court tries to
use the few cases that it agrees to hear as occasions for laying down rules
or standards that will control a large number of future cases.3
3. Frederick Schauer, “Freedom of Expression: Adjudication in Europe and the United
States: A Case Study in Comparative Constitutional Architecture,” in European and US Consti-
tutionalism 47, 60–61 (G. Nolte ed. 2005).
 The Supreme Court Is a Political Court 271

The declining ratio of Supreme Court to lower-court decisions may

have another effect—that of feeding the widespread but inaccurate per-
ception that a majority of the cases that the Court decides nowadays are
constitutional cases. The percentage of Supreme Court cases that are pri-
marily constitutional has not exceeded 50 percent in recent years. In fact
the Court is deciding a smaller percentage of constitutional cases today
than it did in the late 1960s and early 1970s.4 And because it is hear-
ing fewer cases overall, the number of constitutional cases that it is hear-
ing has fallen markedly. But those cases draw much more public at-
tention than the more numerous statutory ones do. They are not only
more consequential; they are more controversial even within the Court.
In the 2004 term, 80 percent of the Court’s primarily constitutional deci-
sions were by split vote, compared to 63 percent of its other decisions.5
A split decision is more likely to attract attention than a unanimous
one, in part by generating more—and more contentious—opinions per
case. Thus, although only 38 percent of all the Court’s cases in 2004
were primarily constitutional, 44 percent of the Justices’ opinions (in-
cluding concurrences and dissents) were issued in such cases. And the
average constitutional decision is more controversial than formerly be-
cause of the nation’s increased political polarization with respect to just
the sorts of issue most likely to get the Court’s attention these days, such
as abortion, affirmative action, national security, homosexual rights, cap-
ital punishment, and government recognition of religion. Why the Court
is drawn mothlike to these flames is something of a mystery. Political in-
eptitude may be a factor—only one Justice serving in the 2004 term,
O’Connor, had had significant political experience before becoming a
Justice. But probably more important is that these issues tend to divide
the lower courts, generating conflicts for the Supreme Court to resolve.
As the number of cases the Court decides diminishes relative to the
total number of lower-court cases that raise federal questions, it begins
to seem as if the Court is abandoning large swaths of federal law—but of
course not federal constitutional law—to the lower courts. To specialists
in those fields the Court is a deus absconditus.
The more the Court is seen as preoccupied with “hot-button” consti-
tutional cases, the more it looks like a political body exercising discre-
tion comparable in breadth to that of a legislature. Because the federal
4. See the tables entitled “Subject Matter of Dispositions with Full Opinions” in the Har-
vard Law Review’s November issues for 1955 through 2003.
5. These also are statistics compiled by the Harvard Law Review.
272 Justices

Constitution is so difficult to amend, the Court exercises more power,

on average, when it is deciding constitutional cases than when it is
deciding statutory ones. A constitution tends, moreover, to deal with
fundamental issues, which arouse greater emotion than most statutory
issues, and emotion can deflect judges from dispassionate technical anal-
ysis. And they are political issues: issues about political governance, po-
litical values, political rights, and political power. Constitutional provi-
sions tend also to be both old and vague—old because amendments are
infrequent (in part because amending is so difficult) and vague because
when amending is difficult, a precisely worded constitutional provision
tends to become an embarrassment; it will not bend easily to adjust to
changed circumstances, and circumstances change more over a long in-
terval than over a short one.
A constitutional court composed of unelected, life-tenured judges,
guided in deciding issues at once emotional and political only by a very
old and in critical passages very vague constitution as difficult to amend
as the U.S. Constitution is, is bound to be a powerful political organ un-
less, despite the opportunities presented to the Justices, they manage
somehow to behave like other judges. But how can they, when with so
little guidance from the Constitution they are asked to resolve issues of
great political significance? Political issues by definition cannot be re-
ferred to a neutral expert for resolution. A political dispute is a test of
strength in which the “minority gives way not because it is convinced
that it is wrong, but because it is convinced that it is a minority.”6 Politi-
cal issues can be resolved only by force or one of its civilized substitutes,
such as voting—including voting by judges in cases in which their polit-
ical preferences are likely to determine how they vote because of lack of
guidance from the constitutional text.
The Court is awash in an ocean of discretion. Asked in Roper v.
Simmons7 to decide whether the execution of murderers under the age of
18 was constitutional, the Court was at large. The external constraints
were nil. The Justices did not have to worry about being reversed by a
higher court if they gave the “wrong” answer, let alone being hounded
from office or seeing their decision flouted by Congress, the President,
or some state official. One can imagine decisions by the Supreme Court

6. James Fitzjames Stephen, Liberty, Equality, Fraternity 21 (1993 [1873]).

7. 543 U.S. 551 (2005).
 The Supreme Court Is a Political Court 273

that would evoke constitutional amendments or provoke budgetary or

other retaliation by Congress. One can even imagine decisions that the
President would refuse to enforce or that would incite a movement to
impeach a Justice. There are historical precedents for such a push back.
The more judges throw their weight around, the greater the pressure for
curbing their independence.8 And because the Court, though powerful,
cannot put its hands on most of the levers of governmental power, Con-
gress or the President, without visibly retaliating, is often able to pull the
sting from a constitutional decision.
There was no danger that Roper would provoke a reaction from the
other branches of government. But consider the Booker and Kelo deci-
sions, also from the 2004 term.9 Booker enlarged the sentencing discre-
tion of federal judges, and there were rumblings in Congress, which sus-
pected that judges would use the additional discretion to impose more
lenient sentences. That suspicion seems thus far largely groundless—
sentencing practices and average sentencing length appear largely un-
changed since Booker10—but had they changed, or for that matter before
they changed, Congress could have reacted by raising the minimum sen-
tences specified in federal criminal statutes. Kelo interpreted the “public
use” criterion of eminent domain broadly, stirring up such a storm of
controversy that Congress and the states have taken steps to deprive the
interpretation of its significance by placing limits on the use of the emi-
nent domain power. So the Supreme Court is not omnipotent, even in
constitutional cases. But the contention that the judiciary is the “weak-
est” branch of government11 is misleading. It is plenty strong.
8. This is a global phenomenon. See Judicial Independence in the Age of Democracy: Critical
Perspectives from around the World (Peter H. Russell and David M. O’Brien eds. 2001).
9. United States v. Booker, 543 U.S. 220 (2005); Kelo v. City of New London, 545 U.S. 469
(2005).
10. In the 26 months after Booker was decided, 61.6 percent of federal sentences were
within the applicable sentencing guidelines range, compared to 67.5 percent in the preceding
decade. (Computed from data published at the Web site of the United States Sentencing Com-
mission, [Link].) A negligible effect on sentence length is documented (though for only
the first year after Booker was decided—more recent data are not yet available) in United States
Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sen-
tencing, ch. 4 (Mar. 2006). See also Michael W. McConnell, “The Booker Mess,” 83 Denver Uni-
versity Law Review 665, 676 (2006). Cf. John F. Pfaff, “The Continued Vitality of Structured
Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines,” 54 UCLA Law Re-
view 235 (2006).
11. See, for example, United States v. Hatter, 532 U.S. 557, 567 (2001), quoting Federalist
No. 78 (Hamilton), in The Federalist Papers 226, 227 (Roy P. Fairfield ed., 2d ed. 1966).
274 Justices

What is true is that, as I noted in chapter 5, the Court is more con-

strained by public opinion than the lower federal courts are because of
its much greater visibility, which is due to the greater impact of its deci-
sions. A court of appeals can get away with declaring the phrase “under
God” in the Pledge of Allegiance unconstitutional12 because its decision
is binding in only one region of the country, and even then only until re-
versed by the Supreme Court, as the decision in that case was, on a tech-
nical ground (lack of standing to sue) that enabled the Court to avoid
the wrath of both sides in the heated national debate over the role of reli-
gion in public life.13 A radically unpopular decision by the Supreme
Court could provoke swifter and fiercer retaliation than the same deci-
sion by a lower court. Imagine if the Supreme Court of the United States
rather than the Supreme Judicial Court of Massachusetts had created a
constitutional right to gay marriage.
This is a clue to what an extraordinary judicial institution the U.S. Su-
preme Court is. The usual external constraints on judicial discretion
are severely attenuated except for public opinion, which operates more
strongly on the Supreme Court than on the ordinary courts. Yet that is
one of the most problematic of external constraints on judges. Legisla-
tors are supposed to be constrained by public opinion; judges are sup-
posed to ignore it.
Nor did any of the internal constraints narrow the Justices’ discretion
in the Roper case. The Justices did not have to worry that someone
or something (their own judicial consciences, perhaps) would harrow
them for disregarding controlling texts in reaching the result they did.
The Eighth Amendment’s prohibition of “cruel and unusual punish-
ments” is a sponge. One might think that if not the text of the Eighth
Amendment, then perhaps its history, could disambiguate the meaning
of the term. That would have made a quick end to young Simmons. But
the Court frequently disregards the history of constitutional provisions
on the sensible ground that vague provisions (and even some rather
definite ones) should be interpreted with reference to current values
rather than eighteenth-century ones. Even Justice Scalia, we recall, does
not think that flogging criminals would pass muster under the Eighth
Amendment today, as it would have in the eighteenth century.14
12. Newdow v. United States Congress, 292 F.3d 597, 612 (9th Cir. 2002).
13. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 17–18 (2004).
14. See Ex parte Wilson, 114 U.S. 417, 427–428 (1885).
 The Supreme Court Is a Political Court 275

A sponge is not constraining; nor, in the Supreme Court, is precedent.

The Court in Roper brushed aside Stanford v. Kentucky,15 which had held
that executing a 16- or 17-year-old (Simmons was 17) does not violate
the prohibition against cruel and unusual punishments. The Court is re-
luctant to overrule its previous decisions, but the reluctance is pruden-
tial rather than dictated by the law. Unlike a lower court, the Supreme
Court always has a choice of whether to follow a precedent. If the Court
follows a precedent because it agrees with it, the precedent has no inde-
pendent force, no “authority,” any more than a law review article that the
Court happened to agree with would have authority. Yet the number of
cases in which precedent dictated the outcome might be small even if
the Justices were committed to following precedent unbendingly, be-
cause then they would write narrow decisions and interpret their prede-
cessors’ decisions narrowly, lest the dead hand of past decisions prevent
the law from adapting to changed conditions.
Nor does conformity to precedent make a decision “correct” in a ro-
bust sense. The precedent may be wrong, yet the Court may decide to
follow it anyway. Suppose the Court issues a decision, A, and years later
an indistinguishable case, B, comes up for decision. (Actually this is
rather unlikely to happen, because the lower court in which B was filed
would have applied A, and there would have been no occasion for the
Court to hear B. But ignore this point, though it is a reason for doubting
that precedent determines many Supreme Court decisions.) Even if all
the current Justices disagree with A, the Court might decide to reaffirm
it—perhaps to create the impression that the Court is rule-bound rather
than rudderless, or perhaps because people have relied on and adjusted
to A. So the Court decides B the same way. If later C comes up for deci-
sion and is indistinguishable from A and B, the fact that both A and B
would have to be overruled for C to be decided as the Court would pre-
fer to decide it becomes an even stronger reason to decide it the same
way as the two previous cases. There is nothing in this lengthening line
of precedent to suggest that C is “correct,” as distinct from institution-
ally appropriate.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justices
O’Connor, Kennedy, and Souter, in a joint opinion, let slip the mask, and
in a part of the opinion agreed to by a majority of the Justices explicitly

15. 492 U.S. 361 (1989).

276 Justices

grounded the policy of adhering to precedent in concerns for the Court’s

political effectiveness: “There is a limit to the amount of error that can
plausibly be imputed to prior Courts. If that limit should be exceeded,
disturbance of prior rulings would be taken as evidence that justifiable
reexamination of principle had given way to drives for particular results
in the short term. The legitimacy of the Court would fade with the fre-
quency of its vacillation.”16 It is unlikely that the Justices meant that it
would be “implausible” to impute vast error to earlier Supreme Court
Justices. There is nothing implausible about that; it is possible to dis-
agree on entirely plausible grounds with immense reaches of Court-
fashioned constitutional law, including the use of the Fourteenth Amend-
ment to make the Bill of Rights (with minor exceptions) applicable to
the states, a move that has spawned thousands of decisions. And think
of all the decisions that went down the drain when the Supreme Court
overruled Swift v. Tyson.17 Probably the three Justices meant only that
whatever the Court may think of particular prior decisions, it must ad-
here to most of them lest the public tumble to the epistemic shallowness
of the body of constitutional law that the Supreme Court has erected
upon the defenseless text of the Constitution. It is because so many of
the Court’s decisions could so easily be questioned that error must not
be acknowledged more than very occasionally.
Honoring precedent independently of whether it is sound injects path
dependence into law: where you end depends to a great extent on where
you began. Today’s law may be what it is not because of today’s needs but
because of accidents of judicial appointment many years ago that re-
sulted in decisions that no one agrees with today but that courts let
stand as a matter of prudence. The authors of the joint opinion in Casey
made clear that they thought the famous case they were reaffirming (ac-
tually just the core of it), Roe v. Wade, had been decided incorrectly. Un-
doubtedly a majority of today’s Court disagrees with a great number of
the decisions rendered by a much more liberal Court in the turbulent
1960s. A newly appointed Supreme Court Justice may pay lip service to
most of the Court’s earlier decisions even if he dislikes the policies on
which they rest. But he will construe those decisions narrowly in order
to minimize their impact. And when he finds himself, as he often will, in
16. 505 U.S. 833, 866 (1992).
17. 41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64, 71–78
(1938).
 The Supreme Court Is a Political Court 277

the open area in which conventional sources of law, such as clearly ap-
plicable precedents, give out, he will not feel bound by those policies. So
if he can command a majority the law will veer off in a new direction.
Eventually the old precedents will be interpreted to death or, finally,
overruled explicitly.
This process of gradual extinguishment of unloved precedents, illus-
trated in the Court’s 2006 term by the plurality opinion in Hein v. Free-
dom From Religion Foundation, Inc.,18 written by the Court’s newest mem-
ber (Alito), is rudely referred to as “boiling the frog.” If you want to boil
a frog, you put him in warm water and gradually turn up the heat;
should you put him in boiling water at the start, he would jump out and
you would have to put him back and this time hold him down. Either
way he would die, though more slowly the first way, and Justice Alito’s
warm-water opinion likewise augurs the eventual demise of taxpayer
standing to challenge religious establishments.
The decisional process that I am characterizing as political and strate-
gic may sound just like the method of the common law. Judges make up
the common law as they go along, yet common law decision making is a
lawlike activity. It is suffused with policies that reflect political judg-
ments (for example, in favor of capitalism), but differs from constitu-
tional law in critical respects. It is a decentralized, quasi-competitive
system of lawmaking because each of the 50 U.S. states is sovereign
in the common law fields. It is subject to legislative override. It deals
mainly with subjects on which there is a considerable political consen-
sus (who opposes enforcing contracts or providing a remedy for victims
of negligence?), so that deciding a case does not require making a politi-
cal choice. And common law judges proceed incrementally, giving great
weight to precedent, hesitating to lay down broad, flat rules. As a result
of these things, the common law is more disciplined and predictable,
less personal and political, than constitutional law—to such a degree,
indeed, as to make “common law constitutional interpretation”19 an
oxymoron.
Evidence of the powerful influence of politics on constitutional adju-

18. 127 S. Ct. 2553 (2007). The opinion drew a forceful dissent from Justice Scalia, who
does not believe in the “boiling the frog” approach to precedents, preferring their outright
overruling.
19. The title of a well-known article by David A. Strauss, 63 University of Chicago Law Re-
view 877 (1996).
278 Justices

dication in the Supreme Court lies everywhere at hand. Consider the

emphasis placed in confirmation hearings on the nominee’s ideology to
the exclusion of his legal ability. Not a single question directed to John
Roberts in his hearing for confirmation as Chief Justice of the United
States was designed to test his legal acumen. Nowadays a certain mini-
mum competence is demanded (and Roberts did receive some tokens of
respect for his outstanding credentials). But above that level the con-
tenders get little credit for being abler legal analysts than their com-
petitors, and sometimes they receive negative credit. That was the fate
of Robert Bork, whose intellectual distinction was held against him as
making him more dangerous.20
Confirmation battles are not mere posturing by politicians who do not
understand that Supreme Court Justices are not like them. Think of the
Supreme Court’s decision, shortly after Samuel Alito replaced Sandra
Day O’Connor, upholding the federal partial-birth abortion statute.21
The decision in effect overruled Stenberg v. Carhart,22 where a few years
earlier the Supreme Court had invalidated an essentially identical state
statute. Justice Kennedy, the author of the majority opinion in the new
decision, had dissented in Stenberg, and it is apparent that what made
the difference in the outcomes of the two cases was not the minor differ-
ences between the statutes but the replacement of O’Connor (part of the
5–4 majority in Stenberg) by the more conservative Alito, which gave
Kennedy the fifth vote that he needed. Kennedy’s attempt to distinguish
Stenberg was so unconvincing that it makes one think that when he said
in Casey that overruling weakens the Court, he meant that only ac-
knowledged overruling has that effect.
Or glance back through 50 years of distinguished Forewords to the
Harvard Law Review’s annual Supreme Court issue and ask yourself
whether the positions urged in them could be thought interpretive in a
deferential sense—interpretation as discovering as opposed to imposing
meaning—rather than legislative. When, for example, Harvard law pro-
fessor Frank Michelman proposed that the equal protection clause be in-
terpreted to require minimum welfare benefits for poor people,23 could

20. Lawrence C. Marshall, “Intellectual Feasts and Intellectual Responsibility,” 84 North-

western University Law Review 832, 833, 836–837 (1990).
21. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
22. 530 U.S. 914 (2000).
23. Frank I. Michelman, “The Supreme Court, 1968 Term: Foreword: On Protecting the
 The Supreme Court Is a Political Court 279

he have thought his proposal a discovery of the meaning of equal protec-

tion? What he was saying sotto voce was that as a liberal he would like to
see the Supreme Court do something for poor people and that the Court
could do so, without being laughed at too hard, by employing the rheto-
ric of equal protection deployed in his Foreword. If one is not a welfare-
state liberal, Michelman’s argument—his brief, really—falls flat even if
one would bow to a persuasive argument that welfare rights really are
found in the equal protection clause. No such argument is available.
In Roper the Supreme Court was not interpreting a directive text, hew-
ing to a convincing historical understanding of the Constitution, or em-
ploying apolitical principles of stare decisis or common law adjudication.
It was doing what a legislature asked to allow the execution of 17-year-
old murderers would be doing: making a political judgment. That is true
of most of the Court’s constitutional decisions, even of the most cele-
brated constitutional decision of modern times, Brown v. Board of Educa-
tion.24 On legalist grounds, Brown could without any sense of strain have
been decided in favor of the school board by a literal interpretation of
the equal protection clause and a respectful bow to Plessy v. Ferguson,25
which had upheld “separate but equal” a half century before Brown, and
the reliance that the southern states had placed on Plessy in configuring
their public school systems.26 The “rightness” of Brown owes nothing to
legalist analysis, and its acceptance may be due largely to the civil rights
revolution led by Martin Luther King, Jr., that followed it.
The implicit ground of the decision was the Court’s disapproving rec-
ognition that the segregation of public facilities in the South was in-
tended to keep black Americans in a servile state, separate and unequal,
stamped by their compelled separation as racially inferior (“no dogs or
negroes allowed”). This system was contrary to American ideals, gratu-
itously cruel, and an embarrassment to the United States in its conflict
with international communism. It was also based on inaccurate beliefs
about the capabilities of black people—and to show that a policy is

Poor through the Fourteenth Amendment,” 83 Harvard Law Review 7 (1969). On the political
underpinnings of constitutional law scholarship, see Barry Friedman, “The Cycles of Constitu-
tional Theory,” Law and Contemporary Problems, Summer 2004, pp. 149, 151–157.
24. 347 U.S. 483 (1954).
25. 163 U.S. 537 (1896).
26. Herbert Wechsler famously doubted whether Brown had been decided correctly. Wechs-
ler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 1, 31–34
(1959). Learned Hand thought the decision erroneous. Hand, The Bill of Rights 54–55 (1958).
280 Justices

based on factual error is an especially powerful, because objective, form

of criticism. That is why sophisticated modern religions avoid making
claims that could be falsified empirically, such as that tossing a goat into
a live volcano will bring rain.
Against the decision in Brown it could be argued, first, that if instead
of forbidding public school segregation the Court had insisted that states
practicing segregation spend as much money per black as per white pu-
pil, the expense of maintaining parallel public school systems might
have forced integration more rapidly than the Court’s actual decision,
which was not fully implemented for decades.27 Second, to decide Brown
the way it wanted to, the Court had to overrule a long-established deci-
sion, heavily relied on by the segregationist states in fashioning their in-
stitutions, educational and otherwise, and to do so in the face of evi-
dence that the framers and ratifiers of the equal protection clause had
intended only to protect blacks against the withdrawal of the standard
police protections that whites received, so that blacks would not be out-
laws in a literal sense.28 Third, for reasons of politesse the Court was un-
willing to state forthrightly that segregation was racist and instead had
to cite unconvincing social science evidence concerning the psychologi-
cal effect of segregated schooling. But the second and third criticisms
just identify Brown as a political decision and the opinion as a political
document. It was a politically sound decision and a politically sound
opinion, and apparently that is good enough, for no responsible critic of
the Court questions the soundness of Brown anymore.
Brown has achieved such prestige that a plurality of the Justices, in a
recent decision curtailing affirmative action (reverse discrimination) in
public schools, intimated (and one of the members of the plurality, Jus-
tice Thomas, stated outright) that Brown holds that the Constitution is
“colorblind”—that is, that it forbids discrimination in favor of blacks or

27. In 1951–1952, the average expenditure per pupil in white public schools in the South
was $132.38, compared to $90.20 in black public schools. Truman M. Pierce et al., White and
Negro Schools in the South: An Analysis of Biracial Education 165 (1955) (tab. 39). See also Rob-
ert A. Margo, Race and Schooling in the South, 1880–1950: An Economic History 24–26 (1990).
Thurgood Marshall “wanted black children to have the right to attend white schools as a point
of leverage over the biased spending patterns of the segregationists who ran schools.” Juan Wil-
liams, “Don’t Mourn Brown v. Board of Education,” New York Times, June 29, 2007, p. A29.
28. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–
1888 348–349 and n. 143 (1985). More on these points in the next chapter.
 The Supreme Court Is a Political Court 281

other minorities as flatly as it forbids discrimination against them.29

Whatever the merits of the “colorblind” interpretation of equal protec-
tion, it is disingenuous (as well as unpragmatic, as I suggested in chapter
9) to ascribe it to Brown. The Justices in Brown were not thinking about
affirmative action, but about the plight of blacks under the apartheid re-
gime then prevailing in the southern (and some border) states. The in-
vocation of Brown in the recent decision was fig-leafing.
It is the unusual constitutional case in which everyone agrees to waive
legalist objections by observing that, yes, it was decided on political
grounds, but they were good grounds and it would be pedantic to de-
mand more. In this regard Plessy v. Ferguson differs from another famous
overruled decision, Lochner v. New York.30 Although a number of respect-
able legal thinkers believe that the maximum-hours statute invalidated
in Lochner was a bad statute rightly invalidated,31 no one wants to rein-
state racial segregation. Typically, as with Lochner, there is persisting
disagreement over the political desirability of a famous (or notorious)
constitutional decision, and this disagreement blocks consensus on
whether the decision was correct.
Although Brown is a classic legislative decision, there are cases in
which Justices vote for results that they would not support were they
legislators whose constituents permitted them a free choice. Examples
from the 2004 term include Florida v. Nixon,32 in which Justice Ginsburg
wrote the Court’s opinion reinstating a death sentence that a state su-
preme court had reversed on federal constitutional grounds, and (less
certainly) Illinois v. Caballes,33 in which Justice Stevens wrote the Court’s
opinion holding that a dog sniff conducted during a lawful traffic stop

29. Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738
(2007). For penetrating criticism of the opinions, see Stuart Taylor, Jr., “Is There a Middle
Ground on Race?” National Journal, July 9, 2007, [Link] (vis-
ited July 13, 2007).
30. 198 U.S. 45 (1905).
31. See, for example, Randy E. Barnett, Restoring the Lost Constitution: The Presumption of
Liberty 211–218, 222–223 (2004); Richard A. Epstein, Takings: Private Property and the Power
of Eminent Domain 128–129, 279–282 (1985); Bernard H. Siegan, “Protecting Economic Lib-
erties,” 6 Chapman Law Review 43, 91–96, 100–101 (2003); and references cited in David E.
Bernstein, “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights
Constitutionalism,” 92 Georgetown Law Journal 1, 6 nn. 16, 18 (2003).
32. 543 U.S. 175 (2004).
33. 543 U.S. 405 (2005).
282 Justices

was not a search because it could not reveal anything other than the
presence of an unlawful substance and so did not invade a legitimate in-
terest in privacy.
Justices occasionally, and sometimes credibly, issue disclaimers that a
particular outcome for which they voted is one they would vote for as a
legislator. I believe Justice Scalia when he says that his vote to hold the
burning of the American flag as a form of political expression that is
constitutionally privileged34 was contrary to his legislative preferences;35
and I believe Justice Thomas when he says that he would not vote for a
law criminalizing homosexual sodomy even as he dissented from the de-
cision invalidating such laws.36 But such discrepancies between personal
and judicial positions usually concern rather trivial issues, where the ju-
dicial position may be supporting a more important, though not neces-
sarily a less personal, agenda of the Justice. No one except a military vet-
eran is likely to get excited about flag burning (and sure enough, the
three veterans on the Court when the flag-burning cases were decided,
though politically diverse, all dissented, joined by Justice O’Connor).
Not only is flag burning rare and inconsequential, but it is likely to be
even more rare if it is not punishable—for then the flag burner is taking
no risks, and his action, being costless to him, does not signal deep con-
viction to others and so loses its symbolic and hortatory significance.
(Where would Christianity be without its martyrs?) And only someone
deeply disturbed by homosexuality could mourn the passing of the sod-
omy laws, since by the time the Supreme Court declared them unconsti-
tutional they had been repealed or invalidated on state law grounds in
most states and had virtually ceased to be enforced in the remaining
ones, though people deeply hostile to homosexuality may have valued
the laws as symbolic statements. One thing important to Justice Scalia is
promoting an approach to the Constitution that would, if adopted, en-
tail the eventual overruling of Roe v. Wade and other decisions of which
he deeply disapproves. And one thing important to Justice Thomas (as
well as to Scalia) is opposing the kind of “living constitution” rhetoric

34. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989).
35. See, for example, Frank Sikora, “Justice Scalia: Constitution Allows ‘Really Stupid’
Things,” Birmingham News, Apr. 14, 1999, p. 3D; Margaret Talbot, “Supreme Confidence: The
Jurisprudence of Justice Antonin Scalia,” New Yorker, Mar. 28, 2005, pp. 40, 42–43.
36. Lawrence v. Texas, 539 U.S. 558, 605 (2003) (dissenting opinion).
 The Supreme Court Is a Political Court 283

deployed by Justice Kennedy in homosexual rights cases,37 a rhetoric

that invites conforming constitutional law to the personal preferences of
“progressive” jurists. In effect, Justices Scalia and Thomas trade a minor
preference for a major one.
But this is not a satisfactory explanation for Scalia’s vote in the flag-
burning cases. Nothing in the text of the Constitution, or in the eighteenth-
century understanding of freedom of speech, supports the proposition
that prohibiting the burning of the flag infringes free speech. The First
Amendment forbids Congress to pass laws abridging “freedom of speech.”
But the term is not defined and cannot be taken literally because that
would make libel, slander, criminal solicitation, betrayal of military se-
crets, the broadcasting of obscenities in prime-time television, child por-
nography, fraudulent advertising, publishing stolen trade secrets, in-
fringing copyrights, public employees’ speech within the scope of their
employment, and falsely shouting “Fire!” in a crowded theater all con-
stitutionally privileged acts—which the Supreme Court has held they
are not. Burning a flag is not even “speech” in a literal sense. So without
offending a textualist or an originalist the Court could have ruled that,
like assassinating one’s political opponents or parading naked through
the streets in order to promote nudism, burning things is not “speech,”
though it can be highly expressive.
So maybe Justice Scalia is not really a textualist or an originalist. Or
maybe textualism-originalism should be thought a component of a
broader concept of legalism that makes a place for the doctrine of prece-
dent. That would be an uneasy alliance, since most of the threads in the
fabric of constitutional law are nonoriginalist precedents. Anyway, ad-
herence to precedent cannot explain Scalia’s vote in the flag-burning
cases. As the dissenting Justices explained, there was no ruling prece-
dent. There was a constitutional doctrine, tenuously rooted in the text
of the First Amendment, to the effect that any public expressive activity
is privileged unless it does significant harm. The doctrine is far from
clear, but it would be muddier still were there an exception for flag burn-
ing; and Scalia prefers rules to standards, a preference common among
legalists, as we know, because it enlarges the area for legalist decision

37. See, for example, id. at 579 (“as the Constitution endures, persons in every generation
can invoke its principles in their own search for greater freedom”).
284 Justices

making. But it is not a preference that can be derived by legalist tech-

niques, all of which favored the dissenters in the flag-burning cases.
Scalia’s vote in Booker, the case that demoted the federal sentencing
guidelines from mandatory to advisory status, may seem to have cut
against his legislative preferences more sharply than his vote in the flag-
burning cases. Yet neither Booker nor the version that Scalia would have
preferred, which would not have required even the qualified adherence
to the guidelines that Justice Breyer’s majority opinion requires, is likely
to cause a reduction in the average severity of criminal sentences. (We
saw earlier that apparently it has not had such an effect.) The guidelines
had narrowed the sentencing variance among judges, but the narrowing
did not make the average defendant worse off (unless he was a risk
preferrer). The average severity of federal sentences did rise during the
regime of the mandatory guidelines.38 But that was because of choices
made by the Sentencing Commission in picking specific guidelines, not
because the guidelines required that sentences be based on judicial fact-
finding rather than, as in the old days, on judicial whim. Anyway, Con-
gress has the last word on how severely to punish federal crimes, and
Scalia does not object to sentencing schemes that allow judges to pick a
sentence anywhere between the floor and the ceiling set by Congress. A
“rule of law” aficionado like Justice Scalia might be expected to oppose
increasing the discretion of sentencing judges, but pockets of discretion,
such as sentencing and jury trials, have rarely bothered judges who pre-
fer rules to standards.
It is not an adequate reply to criticism of a controversial decision that
a Justice joined to say that he was voting against his “desire.” Peo-
ple have multiple desires, often conflicting, and they must weigh them
against each other in coming to a decision—the lesson of Buchanan v.
Warley, discussed in chapter 1. A Justice may desire that burning the
American flag be punished but desire more that constitutional standards
such as freedom of speech be recast as rules that have few exceptions.
Justice Scalia surely disapproves of extravagant awards of punitive dam-
ages to tort plaintiffs, but he disapproves more of the concept of substan-
tive due process that his colleagues have used to impose a constitutional

38. United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assess-
ment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform
42–43 and fig. 2.2 (2004).
 The Supreme Court Is a Political Court 285

limit on those awards.39 Such doctrinal beliefs are as personal or political

as the desire for a particular outcome; they are not the product of sub-
mission to the compulsion of the constitutional text or of some other
conventional source of legal guidance (though the judge may think they
are) because there are no such compulsions in the cases that I have been
discussing. The conventional “left” and “right” ideologies are not the
only things that matter to Supreme Court Justices. But the other things
that matter to them need not be professional legal norms, especially
ones incapable of guiding decisions because their application requires a
clear constitutional text or a binding precedent—and remember that the
Court is never bound by precedent.
Sometimes, moreover, what is involved in voting against one’s seem-
ing druthers may be a calculation that the appearance of being “princi-
pled” is rhetorically and politically effective. It fools people. So it is
worth adhering to principle when the cost to the judge’s substantive ob-
jectives is slight.
I do not mean to be portraying the Justices as cynics who consciously
make the trade-offs that I have been describing. I assume they accept
the conventional law-constrained conception of judges and believe they
conform to it. They would be uncomfortable otherwise, for they would
experience cognitive dissonance. Most jobholders believe their job per-
formance conforms to their employer’s reasonable expectations; many
are mistaken.
The expanded role of law clerks in the work of the Supreme Court (as
in that of the lower courts) has produced an unearned increase in the ju-
dicial comfort level. Supreme Court law clerks are more numerous and
experienced (because all now have spent at least a year in a lower-court
clerkship before coming to the Court) than they used to be.40 They are
also on average somewhat abler because law schools draw a higher aver-
age quality of applicants than they used to,41 probably as a consequence

39. See TXO Production Corp v. Alliance Resources Corp., 509 U.S. 443, 470 (1993)
(Scalia, J., concurring); BMW of North America Inc. v. Gore, 517 U.S. 559, 598 (1996) (Scalia,
J., dissenting); State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003)
(Scalia, J., dissenting).
40. See Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme
Court Law Clerk (2006); Artemus Ward and David L. Weiden, Sorcerers’ Apprentices: 100 Years
of Law Clerks at the United States Supreme Court (2006).
41. William D. Henderson and Andrew P. Morriss, “Student Quality as Measured by LSAT
Scores: Migration Patterns in the U.S. News Rankings Era,” 81 Indiana Law Journal 163 (2006).
286 Justices

of the astronomical salaries of elite lawyers. There is almost no legal out-

come that a really skillful legal analyst cannot cover with a professional
varnish. So a Supreme Court Justice—however questionable his position
in a particular case might seem to be—can, without lifting a pen or
touching the computer keyboard, but merely by whistling for his law
clerks, assure himself that he can defend whatever position he wants to
take with enough professional panache to keep the critics at bay. A law
clerk is not going to tell his Justice “It won’t write”—the symbol of the
self-disciplining effect of authorship. It would be a confession of inade-
quacy. So “delegation of the opinion-drafting function to law clerks may
increase the propensity of Justices to decide cases based solely on their
policy preferences.”42 The more that is delegated (because of more and
better clerks), the more sway the propensity can be expected to have.
It is true that some constitutional cases can be decided by conven-
tional legalist techniques, just by placing the facts alongside the consti-
tutional text. But they tend to be hypothetical rather than real cases. If
Congress passed a law requiring that all books be submitted to a presi-
dential board of censors for approval to be withheld if any of them criti-
cized any federal official, adjudging the statute unconstitutional would
not require the Justices to make a political judgment. But cases that clear
arise infrequently, and when they do they rarely reach the Supreme
Court. And the cases that are unclear in a legalist sense are rarely clear in
a political sense. Brown was exceptional. Many of the landmark Supreme
Court decisions were decided by close votes and would have been de-
cided the other way had the Court been differently but no less ably
manned. Even Brown, which was unanimous, might have been decided
differently had Earl Warren not been Chief Justice.43
If constitutional law is saturated by political judgments, a Justice has a
choice between accepting the political character of constitutional adju-
dication wholeheartedly and voting in cases much as legislators vote
on bills, or, feeling bashful about being a politician in robes, setting for
himself a very high threshold for voting to invalidate on constitutional
grounds the action of another branch of government. The first, the “ag-

42. David R. Stras, “The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Cer-
tiorari Process,” 85 Texas Law Review 947, 961–962 (2007). See also Stras, “The Incentives Ap-
proach to Judicial Retirement,” 90 Minnesota Law Review 1417, 1422 n. 22 (2006).
43. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle
for Racial Equality 302 (2004).
 The Supreme Court Is a Political Court 287

gressive judge” approach (“judicial activism”), expands the Court’s au-

thority relative to that of the other branches of government. (Judges like
to refer to these as the “political branches,” as if the federal judiciary it-
self were not a politically powerful branch of government.) The second,
the “modest judge” approach (“judicial self-restraint”), tells the Court to
think very hard indeed before undertaking to nullify the actions of the
other branches of government.
But we must distinguish between two senses of “judicial activism.” In
one sense, the sense in which I have just used the term, it means enlarg-
ing judicial power at the expense of the power of the other branches of
government (both federal and state).44 In another but misleading sense it
refers to the legalist’s conceit that his technique for deciding cases mini-
mizes judicial power by transferring much of that power back, as it
were, to elected officials (not only legislators but also the members of
the state conventions that ratified the Constitution), from whom the
judges are thought to have wrested it by loose construction. The two
senses may seem the same, both trying to rein in judges. They are not.
The legalist implements his approach by literal (textualist) or historical
(originalist) interpretation of statutes and the Constitution, and such in-
terpretation, though nominally referrable back to elected officials, of-
ten has the effect of curtailing the powers of the nonjudicial branches.
Think of what a literal interpretation of the commerce clause, of the
First Amendment’s free-speech clause, or of the Second Amendment’s
right to bear arms would do to the government’s ability to keep military
secrets, punish criminal solicitation, regulate transportation or commu-
nications that do not cross state lines or national boundaries, and forbid
the sale of heavy weaponry to private persons. The Constitution of 1787
envisioned a much smaller federal government than we now have, and
legalist techniques could be used to carve the government back to its
eighteenth-century dimensions. Legalists of the “Constitution in Exile”
school think that the Constitution as a whole is greatly underenforced,
while legalists in the Bush Administration think that Article II (presi-
dential power) is greatly underenforced.
Judicial modesty or self-restraint, understood as the rejection of judi-
cial activism in the sense of judicial aggrandizement at the expense of
the other branches of government, is not a legalist idea but a pragmatic

44. Richard A. Posner, The Federal Courts: Challenge and Reform 318 (1996).
288 Justices

one. The notion of Holmes and Brandeis that the states are laborato-
ries for social experimentation is at once quintessentially pragmatic in
exalting experimentation over a priori judgments and a keystone of a
policy of judicial modesty, although pragmatism could be thought to
counsel activism in cases in which a statute challenged on constitutional
grounds limits experimentation, such as the federal ban on partial-birth
abortion that the Supreme Court has upheld.
Versions of judicial modesty include Thayer’s principle that statutes
should be invalidated only if they are contrary to any reasonable un-
derstanding of the constitutional text45 and Holmes’s “can’t helps”46 or
“puke” test: a statute is unconstitutional only if it makes you want to
throw up.47 Holmes was not speaking literally, of course; he meant only
that a conviction of error is not enough—there must be revulsion. But
there is a difference between the two approaches. Thayer’s is a one-way
approach, Holmes’s a two-way. Thayer’s approach limits—it never ex-
pands—judicial review. Holmes’s approach allows judges to stretch the
constitutional text when necessary to avoid extreme injustice. Holmes’s
Constitution has no gaps—it is noteworthy how rarely his constitutional
opinions quote the constitutional text.
The difference between their approaches illuminates Griswold v. Con-
necticut,48 which invalidated a Connecticut statute—anachronistic in 1965
(only Massachusetts, another heavily Catholic state, had a similar stat-
ute) and well-nigh incomprehensible today—that forbade the use of con-
traceptives, with no exception even for married couples. A Thayerian
would disapprove of the decision because the statute was not unconsti-
tutional beyond a reasonable doubt; indeed, it is difficult to find a provi-
sion of the Constitution on which to hang one’s hat in a case about con-
traception. A Holmesian might find the statute so appalling (not only
because of its theocratic cast, but also because its only practical effect
was, by preventing birth control clinics from operating, to deny poor
married couples access to contraceptive devices other than condoms49)

45. James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional
Law,” 7 Harvard Law Review 129, 138–152 (1893).
46. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, vol. 2,
p. 1124 (Mark DeWolfe Howe ed. 1953).
47. Id. at 888.
48. 381 U.S. 479 (1965).
49. The use of condoms was permitted on the ground that their purpose was to prevent the
spread of venereal diseases—which is, of course, only one of their purposes. For a discussion of
the invalidated statute, see Richard A. Posner, Sex and Reason 324–328 (1992).
 The Supreme Court Is a Political Court 289

that he would vote to invalidate it despite the difficulty of grounding his

vote in the constitutional text. A Holmesian might react similarly to
Harmelin v. Michigan,50 in which the Court refused to invalidate a life
sentence for possessing a small quantity of cocaine. Actually there was a
bigger constitutional handle in that case for invalidating the sentence—
the cruel and unusual punishments clause of the Eighth Amendment—
than there was for invalidating the statute in Griswold.
In the modest role the Justice is still a politician, but he is a timid one.
He wants the Supreme Court to play a role a bit like that of the House of
Lords after its authority shrank to the delaying of legislation voted by
the House of Commons. The Court can keep its thumb in the dike only
so long; if public opinion is overwhelming, the Justices must give way, as
any politician would have to do.
If the Justices acknowledged to themselves the essentially personal,
subjective, political, and, from a legalist standpoint, arbitrary character
of most of their constitutional decisions, then—deprived of “the law
made me do it” rationalization for their exercise of power—they might
be less aggressive upsetters of political applecarts than they are. But that
is probably too much to expect, because the “if” condition cannot be sat-
isfied. For judges to acknowledge even just to themselves the political
dimension of their role would open a psychologically unsettling gap be-
tween their official job description and their actual job. Acknowledging
that they were making political choices would also undermine their
confidence in the soundness of their decisions, since judges’ political
choices cannot be justified by reference to their professional background
or training. Judges do not like to think that they are expressing an ama-
teurish personal view when they decide a difficult case. Some judges
“agonize” over their decisions; most do not; but both sorts feel a psycho-
logical compulsion to think they are making the right decision. (Some
judges think that just by virtue of their having been made judges, their
decisions must be right, or at least as right as any other judge’s.) A judge
who does not become comfortable with his decision by the time it is
handed down might ever after be tormented by doubts that it was cor-
rect. No one likes to be tormented, so judges do not look back and worry
about how many of their thousands of judicial votes may have been mis-
taken. As the years pass they become increasingly confident because
they have behind them an ever-longer train of decisions that they doubt

50. 501 U.S. 957 (1991).

290 Justices

not are sound. Anent self-torment, I admit that Justice Blackmun was
not a happy camper.51 But his decisions were no less predictable, and
certainly no less aggressive in their assertion of judicial power, than
those of Justices who take a more relaxed attitude toward their judicial
duties.
Judicial modesty is not the order of the day in the Supreme Court. I
instanced Roper; a further example is the already mentioned Booker.52
Legislatures typically specify for each crime a minimum and a maximum
sentence—often far apart, thus creating a wide sentencing range—and
let the judge pick any sentence within the range to impose on the partic-
ular defendant. The mandatory sentencing guidelines curtailed judges’
sentencing discretion, but Booker restored it, though not completely, be-
cause the Court ruled that the judge must still compute the defendant’s
guidelines sentence and that any departure from it must be reasonable in
light of sentencing factors set forth in the Sentencing Reform Act.53
The guidelines required that the sentence be based not only on the
facts about the defendant’s conduct that the jury had found beyond a
reasonable doubt but also on facts that the judge found at the sentencing
hearing by a mere preponderance of the evidence. The defendant might
have been indicted for and convicted of possessing with intent to dis-
tribute two grams of cocaine, but if the government at the sentencing
hearing persuaded the judge by a preponderance of the evidence that the
defendant had actually possessed with intent to distribute 200 grams, he
would have to sentence the defendant in accordance with the guideline
applicable to the larger quantity.
Yet under the pre-guidelines regime, which no Justice thought uncon-
stitutional, sentencing had been even more lax procedurally. The sen-
tencing judge could impose the statutory maximum sentence without
any evidence at all having been presented at the sentencing hearing con-
cerning the actual amount of the illegal drug that the defendant had pos-
sessed above the statutory minimum found by the jury.

51. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey
(2005).
52. See United States v. Booker, 543 U.S. 220, 229–234 (2005) (Justice Stevens’s opinion for
the Court); id. at 244–247 (Justice Breyer’s opinion for the Court). Stevens and Breyer each
wrote a majority opinion, Stevens on the unconstitutionality of the guidelines as mandatory
sentencing directives, Breyer on their constitutionality as merely advisory.
53. 18 U.S.C. § 3553(a).
 The Supreme Court Is a Political Court 291

Why the mandatory feature of the guidelines should have been thought
to violate the Sixth Amendment, a provision designed for the protection
of criminal defendants, is a mystery. Gearing sentences to findings made
on the basis of evidence gave defendants more procedural rights than
they had had before the guidelines, when judges could pick any point in
the statutory sentencing range when determining a sentence. Because
judges’ discretion had been greater (hence the greater variance in sen-
tences), defendants’ rights had been fewer, since a plea to a judge to ex-
ercise his discretion in favor of imposing a lenient sentence is a plea for
mercy rather than a claim of right, unless his discretion is tightly cab-
ined, as it was not in the pre-guidelines sentencing regime.
Invalidation of the mandatory feature of the guidelines did not solve
the problem of procedural informality in sentencing. The government
can still put on a bare-bones case yet count on a heavy sentence if the
judge is known to be unsympathetic to the class of offenders to which
the defendant belongs. And the judge must still compute the guidelines
sentence, which may be high because of evidence first presented at the
sentencing hearing. Although he is not bound to impose that sentence,
imposing it is the course of least resistance because any deviation must
be justified to the appellate court as “reasonable,” whereas a guidelines
sentence can be presumed by that court to be reasonable.54
However the Sixth Amendment issue should have been resolved, the
Court’s resolution reflected an ingenious compromise, forged by Justice
Breyer, under which the guidelines, though demoted to advisory status
(in other words, to being genuine “guidelines”), retain considerable bite.
The sentencing judge must still, as I noted, calculate the guidelines sen-
tence, though he can give a different sentence. But some departures from
guidelines sentences had been authorized by the Sentencing Commis-
sion itself,55 so that all the Court did in the end was to loosen the bind-
ings a little more—and in doing so make more work for the district
judges. The Sentencing Reform Act contains a laundry list of factors that
the judge is to consider in picking a sentence within the statutory lim-
its.56 Until Booker, the use that a sentencing judge could make of the fac-
tors was severely circumscribed by the statute itself in order to ensure

54. Rita v. United States, 127 S. Ct. 2456 (2007).

55. See, for example, United States Sentencing Commission, U.S. Sentencing Guidelines
Manual §§ 3B1.2, 3E1.1, 4A1.3 (2004).
56. 18 U.S.C. § 3553(a).