Surprisingly Human: How Judges Think, by R. Posner

I recently read Richard Posner’s excellent 2010 book, How Judges Think. He pulls back the curtain on judicial thinking, clarifying a topic seldom discussed or understood. He puts the lie to the commonly held perception that judges’ reasoning is (for the most part) Divinely inspired. He reinforces Justice Berger’s somehow-controversial comments in R. v. Gashikanyi, 2017 ABCA 194 (decision cited approvingly in R. v. Parranto, 2021 SCC 46, at para. 130) that “Judges are no different than butchers, bakers, and candlestick makers” (at para. 72). I thought now is a good time to post my thoughts on the book, especially given the recent international uproar over the US Supreme Court’s expected reversal of Roe v. Wade and – on a smaller scale – the ABCA’s decision on pipelines and the SCC’s decision in Brown (discussed at #2 and 9 of last week’s update). I also deal with the subject generally in my December 2021 blog post: Policing Thoughtcrime: The Role of Law Societies? – Moldofsky Law. See also.

He points out, at p. 114, that appellate review is often “intuitive”: “So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person’s decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest of cases, but it is not mindless guesswork either.”

He laments the lack of methodological rigour that goes into training judges (p. 118): “Apart from brief orientation sessions and occasional continuing legal education seminars, judges in our system are not actually “trained,” which is an interesting commentary on the methodological rigor, or rather the lack thereof, of judging. Judicial training is “learning by doing” – a further clue to the largely tacit character of judicial reasoning.”

He has some practical advice for appellate counsel (p. 119), which incidentally reminds me that I wanted to review Point Made one of these days: “Rather than beating appellate judges over the head with cases, which is the standard technique of appellate advocacy, appellate lawyers would be more effective if, recognizing the essentially legislative character of much appellate adjudication and the essentially pragmatic disposition of most American judges, they emphasized instead the practical stakes in their cases and how the stakes would be affected by the court’s deciding those cases one way rather than another.”

He mentions judges’ “reversal aversion” (p. 141): “District judges also do not like to be reversed. Even though a reversal has no tangible effect on a judge’s career if he is unlikely to be promoted to the court of appeals in any event – and little effect even then – it can imply criticism rather than merely disagreement, and no one likes a public rebuke.”

He excoriates judges’ intellectual laziness and bullying tactics (pp. 142-3): “Because a federal district judge has more decision freedom than judges in career judiciaries, personal factors – including the kind of intellectual laziness that consists of acting prematurely on intuition rather than (also) on analysis and evidence, and even the delights of tormenting the lawyers who appear before the judge – are likely to play a larger role in his behaviour than in that of his counterparts in career judiciaries perhaps especially tormenting the lawyers, because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.”

He notes the obvious – that judges can be highly selective in their use of language and are capable of “spinning” almost anything, as are lawyers too, certainly (p. 144):

Appellate judges in our system often conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents. Yet the doctrine of precedent exercises some constraint even on the minority of appellate judges who are ambitious to place their own distinctive stamp on the law. […]

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 the open area in which conventional sources of law, such as clearly applicable 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. (pp. 276-7) […]

There is almost no legal outcome 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 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. (p. 286) […]

If the Justices acknowledged to themselves the essentially personal, subjective, political, and, form a legalist standpoint, arbitrary character of most of their constitutional decisions, the – 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 satisfied. For judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between 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 expressing an amateurish personal view when they decide a difficult case. Some judges “agonize” over their decisions; most do not; but both sorts feel a psychological 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 correct. 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 mistaken. (p. 289)

He points out the Supreme Court’s sensitivity to its portrayal in mainstream media (p. 146): “The irony is that Supreme Court justices pay even less attention to academic criticism than lower-court judges do, though more to the reactions of legislators, the general public, and the media.”

He criticizes the similarity and/or lack of diversity among most judges (p. 155): “Judges who come from the same social and professional background are likely to think alike. So when they disagree they will be arguing from shared premises. Arguments from shared premises can lead to objectively verifiable conclusions – which is not to say that the conclusions are correct. Conclusions that follow logically from incorrect premises have no warrant of correctness.”

He points out the obvious problem of life tenure (p. 158): “Whether in the academy or in the judiciary, life tenure guarantees independence but also invites abuse because it eliminates any penalty for shirking.”

He makes the interesting point that judicial salaries need to be just high enough and not too high (p. 169): “Another effect of a much higher salary, having a similar consequence, would be to attract leisure-loving practitioners. […] And so the obverse of the proposition that low judicial salaries drive out dissatisfied judges is that the low salaries operate as a screening device: only lawyers who really want to be judges will accept the financial sacrifice required.”

He notes the arrogance (colloquially known as “judge-itis” that sometimes accompanies a judicial appointment – p. 306): “Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court justices are at risk of acquiring an exaggerated opinion of their ability and character.”

While I’m on the topic, I thought I’d mention some related points from other works.

In Judicial Conduct and Ethics (by Shaman, Lubet, Alfini – 1990, Michie), the authors note thatUnfortunately, the public and organized bar appear to be more interested in judicial ethics and judicial accountability than the judges are” (p. vii), and that “acquiring a sensitivity to ethical issues will help avoid the two principal charges filed against judges: (1) conflict of interest and (2) inappropriate demeanour (unnecessary harshness, sarcasm, and name-calling)” (p. x). Judges are to: “perform their work with a high degree of competence, and should treat litigants, witnesses, attorneys, and others who appear before them with courtesy and respect. […] In sum, they should inspire trust and confidence, and should bring honor to the judiciary” (p. 2).

They also note that (p. 31), “Vindictive comments or threats towards attorneys in connection with court proceedings have generally been prompted by improper retaliatory motives on the part of the judges in question. Thus, judges have been sanctioned for making rude and vindictive comments or threats to attorneys who sought to disqualify the judge, bring disciplinary charges against the judge, or appeal a ruling of the judge.”

In Judges on Trial by Shimon Shetreet (Elsevier, 1976), the author cites (at p. 187) R v Gray [1900] 2 QB 36 (could not find digital version), in which “The Court expressed the view that ‘judges and courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to the law or the public good, no court could or would treat this as contempt of court.’” See also here and here.

Quoting R. v. Ex Parte Blackburn 1968 QB, he states (p. 190):

Lord Denning M.R. stated that the courts will “most sparingly exercise” the power of contempt, and will never use [it] as a means to uphold [their] own dignity. Commentators are fully entitled to voice outspoken criticism. […]

Salmon L.J. said:

It is the inalienable right of everyone to comment fairly upon any matters of public importance. This right is one of the pillars of individual liberty – freedom of speech… no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.

At p. 244, he notes the importance of civility as between the Bar and the Bench: “Sankey L.J. observed: “the Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for the prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done”” (Hobbs v. Tinling 1929).

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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