Slate is running a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their last conversation was the importance of courtroom attorneys. This month’s conversation is about the law in a world of alternative facts.
Joel Cohen: You both speak prolifically about law and society in your extracurricular writings. You both note problems in the law and how they impact those who participate in (or in some cases, those thrust into) the judicial system. And you both address societal changes as academics and commentators. Given the status you occupy in the judiciary, you effectively stand at bully pulpits with large audiences.
Some judges, however—Supreme Court justices among them—use their judgeships not only to advocate changes in society, but to accomplish change through their rulings. That is, to move society in certain directions. Some call it “judicial activism.” Others, more boldly, call it a “usurpation” of legislative or executive power.
Is it appropriate for judges to use their status as judges on the bench to advance the ball in a way that would (or even should) traditionally be relegated to the executive or legislative branches?
Richard Posner: Basically what judges do is resolve disputes. The resolution will have implications for similar future disputes, and in that respect, make law. I’m not sure what else there is to say about the subject of your question.
Jed Rakoff: Judge Posner is right to emphasize that the everyday job of a judge is to settle disputes, and any judge who takes her oath of office seriously will try to resolve disputes “without fear or favor,” i.e., without regard to political leanings or policy preferences. But there are a fair number of cases that don’t fit this model, cases where one can reasonably apply the law to the facts and come to opposite conclusions. In such cases, a judge’s policy leanings will often influence the judge’s decision, even though the language of the judge’s opinion may make no reference to policy.
Moreover, since, as Judge Posner points out, a decision in one case will have implications for similar future cases, the higher a court’s level—i.e., the greater its power to set precedent for large numbers of cases—the more likely it is to engage in policy-making. The Supreme Court, in particular, has been a policy-making body since its inception, a fact obvious to everyone. Nonetheless, because the judiciary is not expressly vested with a policy-making function under our state and federal constitutions, even those judges who frankly recognize that the judiciary has a policy-making function still usually recognize that they should exercise this function sparingly and only as a last resort.
The result is that the Supreme Court has been for most of its history a conservative institution that tends to justify its policy preferences in terms of not departing from past precedents and/or not interfering with the exercise of power by other branches of government. The notion, therefore, that judges routinely engage in “judicial activism” is a myth.
Posner: This is an excellent statement, Jed.
Cohen: Judge Rakoff’s statement was well put, indeed. But your mutual respect— love fest, even—over this issue seems to me to fly in the face of a widely held view that at least some judges, particularly appellate judges, whether they admit it or not even to themselves, often look to change policy (as long as a proper case is brought to them).
To suggest that the Warren Court, for example, didn’t use its power to effectuate sweeping change would undermine a widely held view. You, Judge Posner, were there as Justice Brennan’s clerk! And today, it seems that (at least) one noted judge on the 9th Circuit uses the bench to effect change, and he basically acknowledges it. And—lest it go unsaid—many believe that our friend sitting in the Southern District of New York who shares this column with us (not to mention the dean of the federal judiciary, Judge Jack B. Weinstein, of the Eastern District of New York) does too.
(By the way, Judge Posner, you’ve been somewhat stingy in your responses. Please be less stingy.)
Posner: I suppose by “stingy” you mean short (forgetting that “brevity is the soul of wit.”) I don’t think there’s more to say than Judge Rakoff has said. We judges resolve disputes. Because the resolution will have consequences for future similar cases, we have to be thinking of consequences when deciding how to resolve a dispute, and “desired consequences” and “policy” are interchangeable concepts. So yes, a judge’s policy preferences will influence judicial decisions.
Cohen: I recognize that, of course, you will often agree—you’re not and were not invited to this dance as adversaries or, as Judge Posner puts it, descendants from Joe Louis and Max Schmeling. Rather, you’re here because you have strong and influential opinions on important issues—and everyone should know that.
That said, put aside the term activist for a moment. Judge Rakoff, are you saying that judges like Alex Kozinski, Jack B. Weinstein, and even yourself, for example, don’t look, or hope for the opportunity, in the right case, to make law AND policy?
Rakoff: I do not go looking for opportunities to change the law, and I doubt that any judge does. My job, like that of every judge, is to apply the law fairly and evenhandedly to the facts presented in the particular dispute before me—but when the facts change, the application of the law may change as well. The Supreme Court, as noted, has a more overt role to play in making policy than a lowly district court like mine, or even a court of appeals like Judge Posner’s, and the Supreme Court gets to pick its cases, which the other federal courts cannot but even at the Supreme Court level, the facts, and the perception of the underlying facts, still drive the law.
In Brown v. Board of Education, the key change of facts that underlay the decision was the evidence before the court that “separate” was not in fact “equal.” And it was a perception of what police practices were actually like that led to the Warren Court’s imposition of enhanced protections against police overreaching. Conversely, the antipathy of the current Supreme Court toward class actions is fueled by the perception that such actions do more to line the pockets of plaintiffs’ counsel than to compensate victims of misconduct. To be sure, ideology may influence how one perceives “the facts,” but reliance on changed facts to change legal precedents has been central to the common-law form of judging since time immemorial.
The single greatest change in my lifetime in the way judges approach everyday cases is the change wrought by Judge Richard Posner, who opened judges’ eyes to taking more account of economic facts and economic analysis in applying the law. I do not regard this change as “ideological” in any fundamental sense, and indeed, it has become so routine today for most judges that it is regarded as “common sense.”
Cohen: Final question to you, Judge Posner. What Judge Rakoff and you have said here will be strongly challenged by “activist”-bashers. Are you saying that there’s no such thing as judicial activism—defined by Wikipedia as “judicial rulings that are suspected of being based on personal or political considerations, rather than on existing law”?
Posner: I don’t know what “existing law” means except views currently held by many judges, lawyers, and politicians. Those views are likely to be fluid, changeable—in accordance with new social needs, attitudes, and authority. Law means one thing to conservatives, another to liberals. It has no fixity.