Posner’s Reflections on Judging: A Discussion of Legal Style

While immersing myself  in Judge Posner’s Reflections on Judging, again I found myself interested in his discussion on the differences between the concepts of legal realism and legal formalism. In this reading, Judge Posner explains how many judges use both the competing schools of formalism and realism, and usually judges use a mixture of the two schools of thought in their legal opinions. My postimages1 this week focuses on how legal formalism is the desired result for judges to adhere to in order to seem impartial, but legal realism is the reality when we analyze judges in our court systems today.

Legal formalism, as Posner describes, explains the role of judges as interpreters, using a complex style of legal analysis to resolve cases without focusing on the factual complexities of any given case. The judge’s task is the application of law to facts, and that authoritative materials such as prior decisions, statutory text, and the constitution will often lead to the correct answer in a given case. See Reflections on Judging. As an example of legal formalism, Posner describes the work of Justice Scalia and textualists, who read statutes “unambiguously” and apply the law as written to factual scenarios. See Reflections. In simple cases, this would be the desired result of judges in our legal system. Judges are meant to be interpreters of the law, using the law impartially as a mechanism for deciding disputes. The law is viewed to be paramount in controversies between two parties, and the judge neutrally applies the law without further consideration of outside factors.

In theory, the formalist legal theory has its advantages. When people are in court, they would see the perfect judge as an impartial umpire ruling over their controversies. The judge would not have room for personal or political opinion on any given matter, for his or her role would be to apply the law as written to any given case. The judges would take a statute or statutes, use analogical reasoning to determine whether the case fit into one category or another, and then decide the case on these grounds. The impartial judge would have all the answers to cases and controversies given to him through legislative action. In short, a branch of government elected by the people would have created the statutes, and therefore the law would be more representative of the population as a whole, as opposed to the thinking of one person. The judge would also defer to stare decisis and the prior imagesrulings of more experienced, learned judges, whose decisions would be making a roadmap for the less experienced judges. This hierarchy of judgeship would promote efficiency, embrace narrow rulings, enforce stability and guide judges in deciding cases uniformly without need for personal thoughts.

However, I simply cannot believe that this could ever be the case in our politically charged modern America. Republicans and Democrats, now more than ever in our history, are spending egregious amounts of money in order to get a judge with “like-minded” views either elected or appointed. And these judges depending on where they sit will, for better or for worse, have politically charged motives.  For the criminal trial judge, this will be whether they are tougher on crime, or more pro-defendant’s rights. For civil trial judges, this political motivation will determine whether they side with businesses or the union employees of that business. And for appellate judges, from state courts to federal courts, they will be deciding cases regarding abortion, gun control, states rights vs federal supremacy, etc., all while having to justify the millions upon millions of dollars that various super-PACs and grassroots campaign followers, not to mention the parties themselves, spend on the judges getting elected. For this reason alone, I cannot buy into the idea that judges could ever see authoritative materials impartially and reach a conclusion on a controversy without at least considering their personal opinion and beliefs.

I agree with Judge Posner that many judges use a blend of legal formalism and legal realism to decide cases before them. The judges have their law clerks look up the case law supporting the briefs of both parties, and have the clerks lay out the key law that supports both sides. However, when a party seeks a lawyer for representation, the key thought by these parties more often than not is “I already know what the law says I cannot do, it is your job to find a way that I can do [the desired result].” See Reflections. The notion that our law is forever expanding and growing is a by-product of the system itself, and judges will always be a part of that system. In the end, the judge will have complex factual patterns in front of them, and will have to make a decision based on what they believe the law says, based on that judge’s interpretation. The interpretation to novel legal issues such as new technology cannot merely be decided based on cattle-pushing cases of 50 years ago. These are novel ideas. The judge will be the interpreter guiding that idea into a new realm of legal thought. I just cannot see how if the judges are steering the ship, how they can do so completely impartially, without at least some deference to their personal and political beliefs.

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