Judical Intuition

How Judges Think
By Richard A. Posner
Harvard University Press, 377 pages,
$29.95, hardcover

Reviwed by Curtis E. A. Karnow

There are people who believe that judges discover the law, as an explorer might discover a river; that judges read statutes, constitutional provisions, contracts, or indeed older court cases (precedent), apply that law to the facts, then produce (presto!) the judgment. Judge Richard Posner thinks that impression is naive--and wrong.

Posner gives us his view of the deliberative process in How Judges Think, the latest of his 40-plus books. Posner's central theme in this collection of essays is to discredit the formal, or legalist, understanding of what judges do. Judges (such as Chief Justice John Roberts at his confirmation hearings) who suggest that they simply "call the balls and strikes" are dissembling with regard to all but the simplest cases--and the Supreme Court does not decide simple cases.

So what do judges really do? They legislate. They make policy. They look for practical, pragmatic decisions. They want to know what the "real stakes" are, and opt for interpretations that have "sensible consequences." To be sure, predictability in the law is a good thing, but it is only one of many factors a judge will consider. Judicial opinions and law professors continue to pretend that "legal reasoning"--some kind of special logical or at least analogical reasoning--describes judicial decision making, but these are only post hoc rationalizations for decisions made earlier.

Early on in the book, Posner promises to tell us how judges "fill in the open area," for example, how they decide cases when the answer isn't obvious. He spends hundreds of pages effectively disemboweling other theories, but Posner never does lift the curtain on what he thinks judges really are doing. Even they don't know most of the time, he claims--the process is unconscious. In Posner's view, judges are Bayesians (implementing Thomas Bayes's probability theorem), influenced by their "idiosyncrasies"--their background, temperament, training, experience, and ideology--a "mysterious [process], personal to every judge." Warns Posner, "Beware the happy or the angry judge!" Because all depends on these "unconscious preconceptions," the more experienced a judge is, the less his decisions in a new case will be influenced by the evidence and arguments in that case--which infuriates lawyers. But this is how judges think, Posner tells us.

Posner divides cases into two varieties: the routine and nonroutine. Decisions in the former are constrained by the vaguely mechanistic application of precedent: Legalism actually works there. The latter "open" cases are not so constrained: In that circumstance, the field is open; and these are the cases he spends his time investigating in this book.

But because the very act of acknowledging and selecting a canon of construction, a rule of interpretation, or a precedent implicates policy choices, no case is truly determined. Thus, despite Posner's belief that most cases are predictable, it looks like judicial intuition must reign in every case: We have "an immense irreducible domain of discretionary lawmaking," says Posner. This is an unpleasant prospect, because leaving things to intuition often results in demonstrable error.

However, a careful reading of Posner here (and elsewhere) shows he doesn't believe in unadorned intuition either. First, as suggested above, his sense of judicial intuition is that of an unconscious shorthand for experience and judgment--unconscious yet a manifestation of skill, much as a skilled pilot or poet intuitively knows his craft. Second, Posner also notes that judges are "constrained" by the rules of the judicial "game," which allow some sorts of considerations but not others. Unfortunately, he only hints about this game, a frustrating lacuna.

Posner's clear disdain for Justice William O. Douglas--his alleged sloppiness, indifference to textual analysis, and overtly political view of his role--provides further clues about the judicial game, although in some of these instances Douglas seems to only flaunt what Posner says other judges do quietly.

It may be this notion of a judicial "game" that allows Posner to emphasize both the intuitive and unconscious nature of judging, as well as judges' conscious attention to the pragmatic. Earlier works by Posner do suggest that an intuitive sense of justice and pragmatism are two sides of the same coin (for example, The Problems of Jurisprudence (Harvard, 1990)). But How Judges Think does not perfectly weave together these strands: I would like to learn more about the nature of this game from Judge Posner. Perhaps I will in his next volume.

Curtis E. A. Karnow is a superior court judge in San Francisco.

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