Posner’s ‘Common Sense’

by Ed Whelan

It’s quite an achievement to make federal district judge Jed Rakoff seem reasonable by comparison, but that’s exactly what Seventh Circuit judge Richard Posner manages to do in this Slate dialogue on whether federal judges should be subject to age limits.

Here’s how Posner supports his position that non-lawyers should be appointed to the Supreme Court:

A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap. [Emphasis added.]

Quoting Rakoff, Posner states:

I strongly disagree with the following: “that there is something to be said for each side of most issues; that careful distinctions therefore matter; that a decision that cannot be supported by reason is essentially lawless; that in the long run the fairness of procedures is as important as the substantive results; that being a good judge is not a popularity contest; and that protecting the rule of law requires eternal vigilance. . . .” I think most of what I’ve just quoted is flatly wrong. It’s not true that there’s something to be said for each side of most issues; that a decision must be supported by “reason,” whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to “reason.” [Emphasis added.]

In case you’re wondering what Posner’s “common sense” generates, I’ll point you to some passages from the newest of his series of streams-of-consciousness-of-rambling-thoughts-masquerading-as-books, grandiosely titled The Federal Judiciary: Strengths and Weaknesses, to be published in August. (I have a galley version and hope to blog more extensively about the mess soon.)

Posner argues that Plessy v. Ferguson (1896), which held that racial segregation of public facilities did not violate the Constitution, “was ‘right’ for its time” because “[i]t is unlikely that the Southern states would have obeyed [a contrary] ruling, and beyond unlikely that the federal government would have attempted to use force to enforce the ruling.”

Ditto for Korematsu v. United States (1944), which upheld an executive order by FDR that forced Japanese-Americans into internment camps. Yeah, the executive order proved “to have been mistaken” about the risk of Japanese-American support for a Japanese invasion of the West Coast, and indeed “seems never to have had a convincing basis.” “But I imagine,” writes Posner, “that the motive behind the order was not fear of a Japanese invasion but a desire to demonstrate to the American people that the government would stop at nothing to defeat the enemy.” So if you’re “demonstrating . . . an absolute commitment to war and victory,” then common sense says you get a pass on forcing your fellow citizens into internment camps.

Posner also invokes common sense in defense of Justice Oliver Wendell Holmes’s notorious opinion in Buck v. Bell (1927), upholding a Virginia law authorizing the involuntary sterilization of supposedly “feeble-minded” individuals. Posner’s speaks approvingly of this most controversial passage of Holmes’s opinion, “in which Holmes combined enthusiasm for the Virginia law with a note of levity”:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.  

Posner evidently regards the last sentence as the “note of levity.” So what, as he points out, that neither Carrie Buck nor her mother nor her child “were mental defectives,” for “this could not have been known by Holmes.” Posner admires Holmes as someone who “acknowledges and accepts the role of emotion in judicial decision making,” and he praises Holmes’s opinion in Buck v. Bell as “a striking illustration of a persistent judicial tendency to base decisions on personal experiences and values, as well as—or in place of—conventional legal reasoning.” (He does note that the eugenics movement for which Holmes had enthusiasm “was later discredited.”)

So there you have it: on how judges should decide cases, a stark choice between Posner’s purported “common sense” and the “antiquated crap” of “conventional legal reasoning.” (By the way, I’m open to serious arguments in support of these and other unpopular decisions, but any such arguments should rest on law, not on a judge’s own perception of common sense.)

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