Up next in 10
Federalist Society 2008 National Convention
Mayflower Hotel, Washington, DC
November 21, 2008, 12:15 p.m. - 2:15 p.m.
Grand Ballroom
* Hon. Richard Posner, United States Court of Appeals, Seventh Circuit
* Hon. Michael W. McConnell, United States Court of Appeals, Tenth Circuit
* Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University School of Law
Member: Jon Roland
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we're excited about this new annual component of the convention and we're very pleased that the rose of
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trans foundation is starting to support it for our inaugural rose of trans discussion we are honored to have two of
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the most distinguished jurists in the country judge richard klosner and judge mike mcconnell and we're delighted
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and we're delighted that the growth france has agreed to moderate it and i'm without i'm going to turn it over to
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the name uh thank you gene um it's a pleasure to be here to inaugurate this new component
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of the convention as gene explained our idea was to increase the
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energy and the attendance of a sat saturday at the convention from the attendance today we've already
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succeeded in that so we're delighted to have you all here um the hallmark of the federal society
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has always been the promotion of vigorous debate and we thought the best possible centerpiece would be a
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one-on-one discussion between two of the greatest legal minds in the country so
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we're
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discussion um judge mcconnell sits on the u.s court of appeals for the 10th circuit after 17
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years teaching constitutional law and related subjects at the university of chicago and later university of utah
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mike mccall became a circuit judge in december 2002. he continues to teach particularly as a
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presidential professor at the sj clinton college of law at the university of neha and his visiting professor at harvard
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and stanford law schools judge mcconnell graduated from michigan state university with a va in 1976
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and the university of chicago lost in 1979 before injury teaching he served as law clerk to chief judge j skelly wright
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on the u.s court of appeals for the d.c circuit and for associate justice william j brennan jr on the u.s supreme
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court uh also uh served as assistant general counsel of uh omb
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and as assistant to the solicitor general united states before moving to utah he was on the faculty of the
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university of chicago law school where he held the william b graham chair before becoming a judge judge mcconnell
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ordered 11 cases in the supreme court served as chair of the constitutional law section of the association of
2:35
american law schools co-chair of the emergency committee to defend the first amendment a member of the president's
2:41
intelligence oversight board and special counsel to mayor brown round long
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in 1996 he was elected a fellow of the american catholic arts and sciences
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judge posner sits on the u.s court of appeals for the seventh circuit following his graduation from harvard
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law school the prisoner of clerk for justice brennan from uh 1963 to 1965 he was assistant to
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commissioner phil hellman of the federal trade commission for the next two years he was assistant to the solicitor general in the united
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states prior to going to stanford law school in 1968 as associate professor judge
3:18
president served as general counsel the president's task force on communications policy
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he first came to uh new chicago law school in 1969 and was lee and brenna
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freeman professor of law prior to his appointment in 1981 as a judge of the u.s group appeals
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beside the circus he was chief judge of that court from 1993 to 2000 uh also the founding editor
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of the journal of legal studies with orly ashenfelter and the american law economics review he
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was president of the american law economics association from 1995 to 96. he received his uh amy in 1959 from yale
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and his llb in 1962 from harvard uh he's also published and no doubt
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these statistics are out of date already so
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some 45 books 275 articles 200 book reviews and short
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papers on a breathtaking array of subjects and he is apparently the most cited
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legal scholar of all time
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we decided approximately as often as number two ronald morgan and number three oliver wendell homes
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it's a great honor to be here with the two of you today and we thank you for inaugurating this new event
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our topic today is how judges think which is also the title of a provocative new book by judge posner
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chief justice roberts famously remarked that judges are like baseball umpires i
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think judge posner and brother mcconnell may differ about whether that's so and perhaps they'll debate at that point
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in a moment i'm sure we can all agree with the chief justice that nobody ever came to a ball
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game to see the umpire mike wasn't for none of you are here to see the moderators um
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thank you thank you very much so we agree that each of us would give me
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so if you were listening and tentatively you realized
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but now all of us all of us here i'm sure we don't worry about traditional spread
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we worry that uh judges unlike other officials really aren't under law
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they're the makers of the law and we worry that maybe maybe especially the highest judges
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aren't really engaged in the analytical process of discerning the law and applying them
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to new situations um
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when the remarkable remarkable thing by chief justice roberts
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his confirmation during that supreme court bonuses or like are like baseball empire umpires
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so what we learned was really remarkable is that no one on the judiciary committee paul
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now this is not an accurate description obviously every every serious person knows that
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american judges have a tremendous discretionary authority and exercise
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when you look at various bodies
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but uh
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and that of course is why confirmation hearings for federal
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and why the controversy rises as
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it rises to the official higher so district judges are subject to fight
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as stationed by the courts of the field and of course many of the cases
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at the first level are new to of of course the peels have a higher
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proportion of bases that are not easily exposed
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and of course of course the peels are subject to less fruity by the supreme
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a largely discretionary really wow
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so we worry about this the question is
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the combination of having a lateral entry position
8:45
in another career by that life tenure it means you're not going to have the
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kind of discipline that you
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where people work their way up by satisfying their superiors
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so there's just a tremendous amount of
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american and judiciary that are really legislating
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they're not not applied some truly understood by the existence of
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this situation there are the judges making up the law
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and if you look especially across supreme court your experience whether it's the heller decision or the progress
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is
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these are cases that could not be decided
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now what what could be done to narrow the
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expression change and there are two candidates one
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is i'm going to draw the president with the obviously there's a very there's a recent book by a columbia law professor
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called law and judicial leader and it's a very uh ambitious and very
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interesting historical discussion of the role of the judge and he explains that in the middle ages
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and refined to the 16th century
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and the essence of it has judged uh seeing his role simply as defined
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existing role that everybody
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and that is a form of traditional strength
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demands i don't think that actually can work in our system
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but what some of our judges have tried to do with some of the justices is to discipline the difficult process
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by adopting a philosophy of decision making whether it's
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originalism active liberty or representation reinforcement a lot of
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candidates and the reason that doesn't matter it occurs that these philosophies cannot be very least
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but also because the the choice of the philosophy seems not to be dictated by anything except
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preferences the validity of these philosophies are
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contestable endlessly so i don't think the whether it's
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constitutional philosophy the kind of historical study that president hampshire is wearing which is extremely
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interesting i don't think that they were actually
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the alternative is something that's fall a little out of sight which is simply taking the position
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that judges should be just very very reluctant to interfere with choices made by
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manuscripts he doesn't have any particular philosophical
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it has a pedigree of source it's the the prestigious philosophy of
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james gravity here 19th century was picked up by justice and it just says
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we're going to indulge a very strong presumption that state statutes and congress are
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constantly insist that their unconstitutionality beyond that the reason for that
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and there are good reasons for this i think in the case of the state statutes i think it's
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very very important to preserve the opportunity and experimentation with
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social policy by allowing the states to go their own way on that basis i'm very very pleased
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with the supreme court's decisions on the zelda case upholding uh school voucher systems
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against not establishments the establishment caused arguments
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between justice they were perfectly respected but we have a serious social problem
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public schools vouchers are one possible answer if we if we snuff
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them out by a nationwide supreme court decision
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on the federal level there's also experimentation we want to occur
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where statutes actually get enacted by the u.s congress is really difficult we have essentially the tri-participation
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development we have these undisciplined parties actually and the senate operates on
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virtually unanimity
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um and reinforcing this we have to be conscious of our limitations as judges
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you know bob foreign
15:24
there's much more than that so i'm gonna quote justice fully against justice
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so in richardson versus large he said i think this is terrific absolutely
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he's talking about the rules that juries are presumed to follow their instructions
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and he said the rule is a pragmatic one rooted lesson the absolute certitude
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that the presumption is true and we believe that it represents a reasonable practical accommodation the interest of this state
15:54
of preventive criminal justice process you're starting privatism and reasonable practice
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i think that's what law is at the upper at the higher levels uh
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i wanted to say one thing professor mcconnell asked me
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a challenging question how has this presumption of constitutionality ever required
16:18
i still don't have a good answer but
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virginia tell that um marriage
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uh violated potentially and i think that's good now the interesting thing about it is
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when the constitution whether the important implementation was grabbed by 1863
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anyone who would suggest that a law permitted was unconstitutional
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that was an era in which states like maine have laws against immigration amendment
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and in the early years of the 20th century these laws virgin in the western states where they decided yeah
17:14
interracial marriage means white people can't marry indians married japanese this happens
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it was not really until like 1967 that
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a decision holding that these laws were unconstitutional could have been regarded as
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acceptance and what i think happened was that it made it in 1868 the concept of equal
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protection wasn't at one point and in 1967
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meant something else even though the words were the same and what had changed is not anything
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that sort of in the conventional vocabulary of legal analysis what
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changed was the society changed around around the law and the law came to mean
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something completely different earlier that i think is the interracial
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discretionary uh content of the law yes sometimes you say
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this these interracial fans these are deeply offensive and so we're going to hold
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is
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uh well i have to begin with no humility here to uh and
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and thank the uh rosa franz foundation and federal society for putting me up here next to
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uh judge richard posner for uh i have such
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a great affection regard i was a law student when he arrived at the university of
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chicago faculty and he was a giant then and now even now as i
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have the occasion to read opinions from courts all around the country
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when there's a face written by dick posner on point i tell you i
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i sit up and pay notice and my experience is that there are really few
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jurists in the country with his uh with his uh uh
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very good judgment i remember when i was clerking for justice brennan i remember justice brandon commenting i don't know
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if anyone has ever told you this but i remember him commenting that he had only known two authentic geniuses in his life
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and one of them was dick posner he and i also co-authored a law review
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article some years ago so we are not please don't don't mistake this discussion here as a as anything other
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than a um a conversation among friends and a client having gone to the mark stein
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lecture yesterday to say that if bernstein is the bridgette bordeaux of canada
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that dick poster is the learning hand of our
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so i'm generation proud to be uh to be up here um so
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judge posner has recently written this extremely interesting book on on how
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judges think and i actually find it a rather disturbing book and i'd like to
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like to explain why uh now it has a both because it turns out that
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rather than asking what makes how judges think distinctive from other
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actors in the political process the answer to how judges think is well let me just give you
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this pragmatism is the word and let me give you the
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the definition here on page 13 a pragmatic judge assesses the
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consequences of judicial decisions for their bearing on sound public policy as
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he conceives it for their bearing on the consequences for their bearing on sound
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public policy as he conceives it now that seems to me
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not to distinguish between what judges do how judges think
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the judicial role and what legislators do how legislators think what is the
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legislator goal which is after all to assess the consequences of what they're doing with respect to sound public
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policy as they uh see of it
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and i think that this is not a good thing for our system of constitutional governance
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to obliterate a distinction between the legislative rule and the uh
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and the judicial role now uh in his remarks that we just heard that
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poser emphasizes a point on which i think he and i are completely in afford which is the
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the judicial role ought to be deferential that is uh the veterans really have no business
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stepping in and overturning uh legislative decisions lightly
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on that i think we're in agreement and maybe we ought to have a third person up here who's a little bit more of a a
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robust uh muscular uh advocate of judicial review because you
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know on this we're on the same page but i don't believe that pragmatism is compatible
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with this more modest judicial role whereas i think that the and i
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particularly believe that the legalist method to use judge postner's
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term in the book his denigration of the legalism
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is is unfortunate both in terms
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of of the separation of powers in the constitution but also by virtue of this
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criterion of what is how much it would lead to judicial overreach
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legalism as judge posner defines it in the book is what i would call and in fact he calls following the law although
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in his book he puts law and scare quotes
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i would have said that that was the essence of the judicial function and that means looking at the traditional
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legal materials of text history past practice and
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precedent rather than looking at the consequences of the decision
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with an eye for its bearing on sound public policy as the judge himself
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conceives it now insofar as judge posner's book is a description of what judges actually do
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and there's a lot of that in the book i don't necessarily disagree with that i
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think it is not exactly a state secret that the judiciary very commonly
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does overstep his family many judges do act like
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legislators so as a description of what is
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very common i don't have any quarrel with that but it seems to me that pragmatism is a prescription
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for more of the same rather than a critique of that let's begin first with
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the issue of legislation because i mean judges obviously are deciding on the basis of a number of different uh
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bodies of law legislation is the most common at least in the federal appellate courts
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there's also common law there's also various consensual arrangements like contracts and then of
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course uh perhaps the most important of all a constitutional law let me begin with
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uh with legislation of course judge posner is right
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that the statutes don't answer all questions and therefore there is going to be a range of discretion left
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to the judge at the end of the day where the judge has to figure out what are we going to
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do this kind of interstitial interpretation where the
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uh where the where the statute is unclear and where the precedence of i'll leave range it's what makes our job
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interesting every case recently decided i don't think people like judge posner and me would
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care to be be judges and i also admit
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that there is a serious temptation when faced with those uh uh
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open-ended uh questions to uh there's a temptation
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to read the statutes in order to produce the consequences that as a matter of sound public policy as i can see that
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would uh would be right but i view that as a temptation to be resisted rather
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than a president of a
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an invitation or uh for proper judicial decision making there are many statutes
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on the books that i would not have voted for and
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when i but when i am a judge interpreting such a statue
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i do not feel free i may do it as a descriptive matter but
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as a normative manner i do not feel free to sabotage congress's work
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because in my judicial role instead when i get to that to that end when discretion is necessary
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what i try to ask myself is what interpretation of the statute is going to carry forth the language and purpose
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of the statute as best i can understand because i believe that the function of
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law and therefore the function of the judge is not one of a
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second-order legislature i believe that the whole the reason why congress passes laws is they've been
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elected democratically they are entitled to write the rules and the agency of
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government in which judge postner and i both said our job is to carry that forward
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dispassionately and as a politically as fallible human beings
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are able to to do similarly with contracts if there's an
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ambiguity in the contract i'm not sitting there to try to figure out what the best contract would be for those
28:08
people who have entered into leading to the best consequences for policy as i can see that
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rather i do my best to figure out what the parties intend to enforce the contract in us of course
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there's public policy or legislation standing in the way common laws a little
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bit more difficult because in the common law system judges have been delegated
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by the people with a certain degree of more legisl of authority which is a little
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bit more legislative in nature in there i think that the attention to
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sound public policy consequences is a bit more appropriate at least for the judiciary as a whole although for us as
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federal judges our job is actually not to create the common law our judge is our job is to
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stand because we hear common law cases in the diversity jurisdiction our job is
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to look at the state common law and if the state common law is not clear to make the best most dispassionate
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judgment that we can as to how the state courts would decide that question and again uh it's often tempting
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to to go over the consequences that i think would be vast but
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that's a temptation to be resisted not a not
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not a recommendation for how judges ought to opt to behave now constitutional law
29:41
left for the end and that's probably the most the most potent
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but here i would say that the same thing essentially is true because just as i
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asked what's the purpose of congress passing laws i want to know what is the purpose of people
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by writing a written constitution and i think the purpose of that is to
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establish a set of powers and of limits on those powers
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and the powers only go so far and the limits are there uh and i think that it's the job of the
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judges to to carry that out as best as best they can and at a certain point
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and i'll talk about precedent in just a moment unless i've gone on too far too long but
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because i do think precedent is an important part of the system but putting that aside for just a moment at
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a certain point does does the text run out does history
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run out does not provide an answer of course it does many cases that is going to be true but at that point i do not
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believe that it is the appropriate role of the judge to look at the consequences of the decision with the bear as to
30:58
their bearings on sound public policy as he conceives it at that point it's the job of the judge
31:04
to say it is not unconstitutional that is when the constitution runs out
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and the text doesn't provide an answer when the history doesn't provide an answer when the president leaves it open
31:16
it isn't open to judges then to step in and make the decision instead of the
31:22
representatives of the people is at that point the job of the judge to step back and say that the uh
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this is a this is an appropriate decision for the democratic branches because our constitution is not made up just of
31:37
limitations on government it is also an empowerment of the democratic process it
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is just as important in interpreting the constitution to allow the elected
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branches of government state as well as federal to act within the areas in which
31:53
they have been a left-free act as it is to tell them no when they
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and i think that the the idea that the role of the judge is to be the
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pragmatist to try to to try to make things come out right is
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simply to to step into the role which has been left in our constitution to the
32:21
political branches now that's probably enough said for now we might talk about precedent
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it would be nice if we could decide all the cases
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using techniques of legal reasoning which clearly we will all conventions and
33:00
clearly distinguish our work from our legislators unfortunately i don't think that's
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possible and also i don't think it it results in
33:12
one of my loose precious messages i don't think it results in
33:19
a tendency to interfere with it that depends entirely on temperament and attitudes and judgment
33:28
i happened to find on the web recently a list of 161 statutes
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that the supreme federal statutes of the supreme court has held unconstitutional since
33:39
barbary versus madison have they had elephants
33:45
i looked over that list i didn't see any actual statutes that i
34:01
the only one which seemed to be a disturbing statute was school segregation in the district
34:07
of columbia which the supreme court had validated in walling versus sharp 1954
34:14
and it faced ground or supportive education of course
34:19
there's a tremendous problem there which is that there's no equal protection for what's applicable
34:25
so multiverse is sharp is sheer judicial
34:31
arm twisting on the other hand the spectacle of having a segregation in the district of
34:37
columbia with the supreme court of distant validated western countries impossible
34:42
so people would say well the supreme court justices they're not going to desegregate the schools
34:51
so that's a decision which can't be justified i don't think there's any legal reasons
34:56
but nevertheless probably the right decision but for the rest of it i'm not i have no particular desire to
35:04
knock down state of france but as i say it's not because
35:11
it's not because i feel pinned in by
35:16
the history of president paul that's that i i'm not just not that political in my in my office
35:24
so i don't know what professor i started judge mcconnell
35:40
he was very polite when he
35:48
he didn't mention the other justice douglas
36:10
traitor he's called the thing of quarter and as a result the king says great for
36:16
this great job we'll fill the train i'm going to make you i'm going to make you the name
36:21
and there's a sense of this you know and that is uncomfortable because now he's being given he's being clothed with me
36:28
with the title of the skyline but i'm being bracketed justice douglas
36:37
so but i so here's the problem with the
36:43
attempt to use history and precedent to decide these very difficult cases
36:49
it seems to me if you take something like a bowling versus sharp or if you
36:54
take lava risk to virginia if you look at history if you look at original meanings those cases are
37:01
decided very questionably
37:08
it would be very hard for the supreme court to say i think that yes bans on interracial marriage
37:16
are constitutional because in 1868 they were considered retirement
37:27
1967 decisions in other race cases
37:33
but the problem with reliance on the president is that often the presidents are themselves from
37:40
a legal reasoning standpoint illegitimate uh losses
37:47
and so some justice sunspeaker just by justice thomas are skeptical about reliance on
37:53
president because after all those presidents may be arbitrary legislative acts so
38:01
there's something wrong when the judge says well i'm constrained because i just followed president if the president was
38:08
himself the unconstrained legislative decision i think it's a problem for justice
38:14
scalia because i think his originalism is acceptable in part
38:20
because since he doesn't get weight depressive he's able to he doesn't have to
38:26
carry through the whole logic of his position for example the incorporation
38:31
of most of the bill of rights against the states by the supreme court that is not originalism that's traditional
38:37
regression so i think precedent is is a quicksand on which to rely
38:45
i think history is is is worse what particularly bothers me
38:51
about the heller decision parts of the fact that i don't think the spring brings any business
38:58
involving itself with gun control policy across the nation
39:03
now of course color hasn't yet been applied to the states but we've never willed the plot
39:09
i have not committed to speculate on that that's just pending
39:27
legal system obviously are varying across the nation with cultural
39:33
differences big cities second amendment
39:38
18th century document no conceivable conception of the problems of modern
39:43
weaponry modern modern cities modern crime problems
39:49
but here's what particularly bothers me that is supreme court justices setting themselves up as justice scalise
39:57
as historians that you can have brilliant log works in the entire
40:02
resource of the library congress that will not change a judge into a storm
40:08
history is a profession people devote their lives to it you know you don't send out a bunch of
40:15
law clerks for two or three months uh and carrying them and yourself
40:21
i think it's illegitimate for our judges to base their decisions on
40:26
history if the history is contributed it's something everyone agrees with
40:32
but when you have professional historians weighing in professional historians tend to decide as best to
40:38
steve doesn't mean right a lot of history is simply indeterminate but in any event i don't think this is
40:45
something judges can do so what i see judges doing they emphasize this
40:51
is pretend and i'm not saying they're hypocritical or anything like that but
40:57
but they are trying to give the cloak of objectivity
41:04
the appearance of objectivity to a legislator and one get more point this is something
41:09
which justice scalia and i very much agree i do not approve of
41:14
courts citing foreign decisions as authority now they want to cite a
41:19
partnership and say some court in zimbabwe made a very interesting point about
41:25
executing well that's fine
41:33
but to count those and say well everybody in every country in the world except the united states
41:40
doesn't permit execution of minors or people or child rapists
41:46
that i think is because actually to understand the significance
41:53
of decisions by supreme courts and the other hundred managing countries in the world you would have to be
41:59
enormously well informed about the judicial systems the political cultures
42:04
the legal cultures the languages of the 192 countries in fact our supreme court
42:09
justices and our judges certainly believe myself we know very very little
42:15
about any of these subjects so this is more window dress and i see
42:20
judicial historiography judicial precedent mining
42:27
and judicial foreign citations is example of the fig leafing window dressing that judges
42:35
engage in because we are reluctant to acknowledge that there is this
42:40
significant fraction of cases where we are making legislative judgments because we don't have materials
42:52
a lot of points there my
42:57
begin with yes this is that we're talking aspirations here that is to say
43:03
that um you know what are the norms for the legal perfection of the judicial
43:11
portion of the legal profession this is what uh it is
43:18
judge posner is a as an icon and that's why in part by the book i'm
43:25
concerns me because when judge posner talks pragmatism
43:31
and talks consequences we know that he is then going to carry that through
43:37
with appropriate modesty and deference and enormous learning and understanding
43:45
but he has now with all the force of prestige of his
43:52
of his position has announced that judges in general
43:57
should decide cases not on the basis of legalism which is a mirage
44:04
but instead on the basis of their assessment consequences and
44:11
the and not all judges are going to uh to be uh dick posers there will for
44:16
example be judges who believe their idea of the consequences and sound public policy
44:24
is it would be a good thing if the elites of other countries in the world especially europe thought better of us
44:32
right that's a consequence right and thus that's why and that of course is why uh there's a a bad for uh
44:41
reciting foreign law just because uh justices who enjoy
44:48
a collegial exchanges with the germans and the dutch and the militants and so forth
44:55
don't like being told they're barbarians
45:02
and that's a consequence right and and maybe to elevate that a little bit it isn't
45:07
just personal they think that the united states suffers internationally and has and that
45:13
there's serious untoward consequences for our foreign policy and our leadership role
45:18
in the world by virtue of the fact that the elites of europe believe that we are
45:23
barbarians right so these are the sorts once judges are liberated
45:30
to disregard the
45:35
legalist principles and instead to look simply at consequences by their own
45:40
likes they are free to do whatever they want and
45:46
i say that however fragile
45:52
the limitations may be of text and history and precedent that
45:58
they are all that we stand between all the stand uh between the rule of law and
46:07
uh and and the free for all uh with with judges simply uh doing uh
46:13
whatever they want and again my quarrel with judge postner is not his
46:21
heartfelt and entirely sincere judicial restraint
46:27
which i admire and share is the um it's descripting
46:34
the legal process of its legal underpinnings is the acid skepticism with which he
46:42
approaches text and history and precedent that i think is it's both
46:48
that's very damaging but i also think it's false so now we need to talk about some of these elements and particularly
46:55
let me touch briefly on precedent and then talk a little bit more about history
47:01
precedent does have to be part of the process i know you know my friend michael spokes paulson
47:07
argues otherwise and so and so do some other uh
47:13
folks who sometimes inhabit these these tables but
47:18
the precedent i think is an essential part of the judicial process always has been in the
47:24
english-speaking world uh uh alexander hamilton and federalist 78
47:30
refers to it as indispensable to uh to a proper judging but i don't think
47:38
that president trump's uh the other more fundamental forces
47:43
well this is roughly the way i think it works that we have a tax you begin with the tax
47:49
but if you look just and the text itself answers some questions right there's some things that are plainly
47:54
constitutional some things that are plainly unconstitutional and you don't really need to do anything other than just look at the words they're not a lot
48:01
of important questions decided that way there are a few then the next step is you look at the
48:08
history and i think the history does in many instances narrow the meaning of the
48:13
text we know pretty well that the due process clause did not include a right to have an abortion on
48:20
demand i think that's a pretty clear uh uh matter i think that they're the
48:26
uh so the history narrows uh uh you know to some extent but does that
48:33
but does it eliminate all ambiguity of course not right that's the originalist step in the process it does not answer
48:40
all questions so the idea that originalists just look back and they say well what did the constitution mean is
48:47
originally understood gives you an an answer to every case that's that's
48:52
just cartoonish that's not what happens the history narrows the range but that still leaves some
49:00
area of some range and then we've had 200 some odd
49:06
years of experience since then with a number of these areas and the people
49:11
through consistent uh enactment of laws and through executive actions and so forth
49:18
have given further uh uh further narrowed
49:24
and and the judges the judicial decisions and their precedence also further narrow i do not consider those
49:32
narrowings those two types of precedent both democratic and judicial i don't view those as laid in stone in quite the
49:40
same way the text is laid in stone they can be revisited but unless they're
49:45
powerful reasons to revisit them uh they have they serve to channel uh
49:50
judicial discretion and they have a democratic legitimacy especially the first kind of precedent
49:57
out of multiple and a legislative acts but also precedent in
50:02
so far as precedents are repeated and accepted by the people who become
50:08
embedded in law they have a kind of a democratic legitimacy i do not believe that precedent in the form of one
50:15
supreme court decision you know five to four that upsets everybody i
50:21
don't believe that that has much presidential value at all right but uh but a precedent say the
50:26
president establishing the incorporation of the bill of rights fascinating whether he is historically a defensible
50:32
or a precedent like uh uh a holding a gender discrimination is uh is
50:40
unconstitutional or deserving of various ways of something close to strict scrutiny and equal
50:46
protection things of that sort are accepted most people agree with them whether they were right or wrong we have
50:52
no business we have no call to go back and uh and re-litigate those questions so
50:58
precedent and practice are then narrow but even then there is going to be a range right and
51:05
this is i think the most important question when you get to that range and there is still
51:11
some open room in a constitutional case that means it is constitutional that means that the
51:18
legislature gets to get to make the decision it doesn't mean that we get to decide what we think would be best so
51:25
that's precedent on history
51:32
no of course judges aren't historians of course we aren't economists either
51:46
economics is a profession right and we can't send our law clerks out to out those that learn that and to run the
51:53
regression equations and so forth that doesn't mean that judges should disregard economic logic when it comes
51:59
to cases that have an economic impact that would be uh that would be idiotic
52:04
uh i think and uh and of course the way history comes into
52:10
the uh the decision of cases is very rarely
52:15
maybe almost never through the original historical research of
52:21
judges it comes it comes through the medium of the work of professional historians and the
52:28
permanence of that into the through briefs of
52:33
good lawyers then of course judges have to evaluate uh some of that and sometimes it's going
52:40
to be tough um and i can see that there are some very
52:46
difficult contentious historical questions if it's on the race or if it's on the you know the the 50-50 then that
52:54
strikes me as a good reason to say well the legislature should be able to do what it wants because there's no clear
53:01
showing of unconstitutionality the problem with condemning history as a
53:07
mode of interpretation has to do with the cases that are not like this
53:12
right because once we say as a matter of principle that history is irrelevant to
53:17
constitutional interpretation that applies even when the history question is relatively easy
53:23
and that means the judges are free to interpret the constitution in ways that
53:28
they know we know we all know have no possible
53:34
historical basis and the understanding of the uh of the clause as it was enacted by the
53:40
people right and so to to argue from the proposition
53:46
that many historical questions that face us in cases like heller for example are
53:52
very difficult ones to the proposition that therefore we should feel free to interpret the
54:00
constitution uh in accordance with our view of consequences in light of the uh
54:05
sound public policy as we conceive it and ignore and in the face of history
54:11
i think is a very is truly a prescription for an out of
54:16
control judiciary
54:35
any any any position that the judge wants to take on whatever grounds
54:42
can be rationalized in a judicial opinion
54:47
which will look like a real word that needs a reason
55:00
of the judge and the lawyer is an infinite size of elasticity and so one danger
55:07
is the judgment believes that using this revenue can justify the most far-reaching
55:14
revolutionary decisions so you read the read the opinions about gay marriage
55:20
massachusetts and california and so on they are very legalistic opinions they
55:26
are full of history of president analyzing this and that i think as i say that's a big leap and
55:33
i'm bothered that judgment is not does not seem to be bothered by the
55:38
phenomenon of fig leaking and window dressing by which judges disguise their
55:43
policy judgments whereas the judges like holmes who are pragmatists who are skeptics or not
55:50
legalists they they become timid when it comes to interfering with the other branches
55:57
because they don't feel and uncomfortable to be with the kind of rhetoric
56:03
that justifies that that is used to justify these wild decisions
56:11
and they are skeptical just about their own knowledge of what is good for the country
56:17
so i'm worried about the judges who really think they have an analytic methodology by which they can
56:25
decide the second related point really surprised by what judge mcconnell says
56:31
about families it's almost as clear that the equal
56:37
protection clause was not about men and women as it is that it wasn't about
56:42
danny marriage so what that means is
56:47
i'm not saying this decision in the slightest look at the bill of rights and look at the 14th
56:54
you have just a lot of general stuff which is which the courts have molded to
57:00
fit current values and current policy preferences there's no fixity in
57:06
the bill of rights the important part of the constitution is constitutional
57:13
the bill of rights in the 14th amendment are fluff
57:18
there is no fixed meaning to terms like equal protection due
57:24
process rule an unusual punishment right to counsel
57:29
just go through all the things the supreme court has done in the name of the constitution that has no basis
57:36
whether it's pain or indigent defendants lawyers or acquiring the learning of the inspector
57:43
or the examples i've given any other examples
57:49
i don't see how they how those decisions can be justified any basis other than
57:55
the justice considered current needs current pressures consequences of alternative decisions
58:03
it's a fact that today because of the complexity of criminal law it was very difficult to
58:08
be very difficult for an unrepresented person to cope with the prosecution it was not true in the 18th century
58:17
it would be difficult for a person to survive illegal prosecution is where
58:22
does not minimally come those are facts about today they're not facts about the 18th century
58:29
and you know you can you can you can conceal the
58:34
legislative element of constitutional interpretation and much
58:40
statutory interpretation sherman act 1890 you think modern anti-trust law appears the slightest
58:46
resemblance to what senator sherman and his colleagues
58:52
so i think without the fake leaves we're candid about what we are doing in this open area orthodox materials
59:01
of legal decision-making don't close
59:07
the deal and then we would be more cautious about constitutional and statutory creations
59:18
obviously the doctoral toolbox is large i don't think it's a bad
59:23
word so i've had the experience i'm sure you've had the experience i suspect everyone in
59:30
the room has had the experience uh that maybe for mr
59:36
leo here who probably hasn't yet read any supreme court decisions um
59:42
that for other court decisions of reading cases and saying they just made that up
59:49
that's that's the technical term for for being for having noted for for the
59:56
pig leaf being falling off right
1:00:06
it's remarkable though i think that this experience shows that it is not possible to dress up every
1:00:13
possible decision employed yeah they can have citations yes they can invoke some
1:00:18
history and so forth but there are many decisions that i think you know left
1:00:24
right and center any person of who cares about legal professionalism
1:00:30
and craft would say that opinion just doesn't uh hang together the authorities in
1:00:37
which the sites are simply not not there and and i think
1:00:42
that when that for most of the pyramid of judicial decisions
1:00:49
that these materials are much more constraining than judge posner
1:00:57
yes there are a few there are very important i quote about cases where uh
1:01:03
where it's harder to tell of the difference but
1:01:08
but uh through much of the legal system uh these constraints are quite real i teach a a uh course a supreme court uh
1:01:16
some uh simulation seminar i call it in which we uh the students uh uh nine of
1:01:22
them form a court and two of them argue when they read the briefs from current
1:01:28
cases in the supreme court you know students tend to be quite ideological and they bring a lot of prior
1:01:34
preferences to these cases but every time i sit back and listen to the
1:01:39
deliberation of the court the nine students as to how they're going to decide by the way they're free to make
1:01:45
an overall precedent they can do whatever the supreme court can do within the terms of the course every every
1:01:53
time i sit back and hear students say something like well i really wanted to
1:01:58
come out this way but i just will i just can't do it the law won't uh
1:02:04
won't go that way it's a it's a process of discovery for the students that law
1:02:10
is in fact uh constraining not of course infinitely constraining
1:02:16
but it is certainly not infinitely malleable either and then this brings us
1:02:22
i think to the um to to an empirical proposition that
1:02:27
judge opposed relates before us this empirical proposition is that judges who are taught and
1:02:35
believe the norm of pragmatism that they should
1:02:41
make sure that the consequences are in accordance with sound public policy as they conceive it will be more
1:02:48
restrained less likely to throw their weight around than judges who are imbued with the norm
1:02:55
of legalism which is to say that they are bound by tax and history legislative
1:03:02
intent in the case of legislation and precedent
1:03:09
i'm not sure how we can test that proposition maybe we'll have maybe over the next eight years we'll
1:03:14
have an opportunity to have it tested even more i've done in the past
1:03:21
but i just have to say i don't believe it that seems to be completely implausible
1:03:34
if you could speak to this uh question of institutional competence so uh your
1:03:41
brand of pragmatism has seems to have a substantial dose of economics that the
1:03:47
judge should be weighing the consequences of this decision and i think you mean social
1:03:53
consequences costs and benefits out of the world and uh can you speak a bit about why
1:03:59
you're confident that judges could do that in a way that you're not confident that they can do history for example
1:04:06
i know there are there are areas of law for example they had trust war
1:04:13
telecommunications law certain types of environmental issues
1:04:19
where the where the statutes are using economic or
1:04:25
they're alluding their illegal economic concepts and where economics provides a framework
1:04:32
for analysis that they may be fighting for
1:04:39
and then then the problem for the judges is with any other technical areas how do you
1:04:44
gain technical knowledge how do you understand the concepts well it's the duty of the lawyers to explain
1:04:51
the concepts in a way that the judges can understand that when it comes to fact application
1:04:58
expert witnesses and so on we can deal with that i haven't to hear a telecommunications case a couple of
1:05:04
months ago came out soon i don't know if any how many of you
1:05:09
were the telecommunications act of 1996 incredibly complicated
1:05:16
mr rosencrantz mentioned i actually have used to know a lot about telecommunications the industry is changing really so we
1:05:23
had this case and um i read the breeze and my law firm spread three so we
1:05:29
didn't have any idea had the argument
1:05:36
i said i said to a lawyer i said my words i said i read the briefs
1:05:42
you do not understand and i want you to explain in words
1:05:50
and he was taken aback but he didn't he explained and it wasn't
1:05:55
once though we understood it i wrote an opinion
1:06:02
and i felt uncomfortable because i forced him to explain things
1:06:08
and that's what what we have to do we have to force the lawyers to explain
1:06:15
the case to us i would not take the economic approach and use it in you know people with
1:06:22
loving versus virginia or anything like that except in a sense that i think decision banking is inherently a matter
1:06:30
of costs and benefits but in a sense that you're looking at the pros and cons
1:06:35
the effects of decisions
1:06:41
so so i i think i think that's an escape unless you have you're lucky enough to
1:06:47
have one of these cases where the history of the president really is
1:06:54
really makes you comfortable with a decision that doesn't involve them to make a legislative
1:07:00
type of judgment i'd be interested in what judge mcconnell thinks about some of the cases i've mentioned like
1:07:07
virginia and roe versus wade and the rest i mean
1:07:13
some of these are are really tenuous
1:07:19
i think i think they're i think they're good decisions i think the gender discrimination
1:07:27
uh interpretation of equal protection policies let's see how they
1:07:34
let's see how they can be gotten with the standard techniques
1:07:42
loving versus virginia um uh judge posner told us that earlier
1:07:48
that no one could possibly have imagined that miscegenation would have been thought to be
1:07:53
constitutional anywhere near amendment
1:08:00
well he actually speaks too quickly there are a number of people imagine that it was not as if this issue
1:08:07
was not debated at the time it is true that the republicans not by
1:08:15
the big r republicans the party of civil rights
1:08:21
made a deliberate strategic or tactical i'm not sure which it is decision that
1:08:27
miscegenation would not be the fight that they caught because it was it was an extremely unpopular
1:08:34
uh application of the 14th amendment it was even unpopular among the large majority
1:08:42
of their uh african-american conspitu and they were quite attentive
1:08:48
at the time so it was it was not it was it was
1:08:53
something that they wanted to avoid pull that i played though so here's how it came up and it's really really rather uh
1:09:00
interesting uh the democrats who oppose uh various reconstruction measures in
1:09:07
here i'm thinking particularly the civil rights act of 1875
1:09:12
charged that if you believe the principles of these bills
1:09:18
then the logical uh concomitant of that is that
1:09:26
miscegenation laws must be unconstitutional and
1:09:31
that was a potent political charge in fact it was one of the most commonly
1:09:37
uh common charges leading to some you know related actually to some rather squirrel
1:09:44
uh moments in the uh in the debates in which
1:09:50
i remember on one occasion a congressman i believe was a congressman from kentucky had said
1:09:57
it said why this would lead to to this means social equality by which
1:10:03
he meant uh uh sexual intermingling of the racist which one of the republicans
1:10:09
responded why sir in the south you never had any kind of equality except social equality
1:10:19
and the the republican reaction to the charge that miscegenation was the
1:10:26
logical predominant their position is interesting it was silence
1:10:32
i am not aware i think i read every word of these debates i am not aware of an
1:10:38
instance in which one of the republican supporters of the reconstruction measures said no anti-massage
1:10:46
information laws are constitutional basically they changed the subject they made fun of the democrats along the
1:10:52
lines that i just mentioned they dodged the question and so forth
1:10:58
i think that loving versus virginia was an authentic interpretation of the principles of the 14th amendment it was
1:11:05
one that was too much of a political hot potato for the party of civil rights at the time uh to
1:11:11
be uh to be open uh to actually support right that they did not deny it and i
1:11:18
think that it followed from the principles that they were willing to stand up for uh and support and thus i
1:11:24
think that it was correctly decided on historical grounds
1:11:32
because i would wager that the
1:11:41
equal protection clause would not have ratified in the form of which it stated if it had
1:11:48
been explained to the people that this would invalidate otherwise against
1:11:54
integration marriage professor as he then was president
1:12:00
has done an interesting historical work on the reconstruction amendments and he did it
1:12:05
in an effort to provide a historical pedigree for groundwater supported education which i think is only slightly
1:12:13
less difficult than finding a historical pedigree for loving versus virginia
1:12:19
he was forced in his in his historical research to rely very heavily on
1:12:25
post-legislative history that is on what congressman said after
1:12:30
1868 and he mentioned 1875 discussions i don't really think
1:12:36
there's a good historical pedigree for brown or an opportunity
1:12:43
for loving they're perfectly good decisions but they're not good decisions because they honor the original
1:12:50
of uh 14th amendment now what if one defined if what they did
1:12:56
mention principles if one thinks of constitutional
1:13:02
of constitutional provisions as establishing general principles
1:13:07
then of course it becomes easy to give a historical pedigree to any modern decision by just saying well
1:13:14
the principle of right to counsel the principle of equal protection the principle of due
1:13:19
process was deliberately made open-ended to be filled in centuries later by judge you
1:13:26
can say that but of course what you're really saying is you're treating the constitution
1:13:32
as a delegation of legislative power to judges since that's the reality
1:13:38
why don't we recognize it as we appoint judges who were timid about legislation will
1:13:45
have restraint if we appoint judges who are aggressive about policy wanting to
1:13:52
make their policy preferences law well to be alert let's say those people
1:13:57
once you have some person who has a you know real reputation of political activism
1:14:04
uh he's a very political person he's been a legislator and so on and he kind of this confirmation here he says well
1:14:10
you know i've been a legislator but now get judged and i'm just going to apply you know
1:14:17
all of history and president this and that and the others and i have to worry about just because i was a legislator why
1:14:24
didn't you say the person if you're going to be a an appellate judge you are going
1:14:33
you are you are you are destined you are predestined
1:14:39
to be exercising legislative authority in that minority of cases
1:14:45
which are in this open area in the air force since you are temperamentally
1:14:50
legislative in character we don't want
1:14:56
uh judge mcconnell you wrote that overwhelming public acceptance of
1:15:02
certain supreme court decisions quote whatever their original legal merit constitutes a mode of popular
1:15:08
ratification which gives these decisions legitimacy and authority uh judge posner says that this view
1:15:16
quote licenses political judgment or it says to the judge if you think you understand the direction in which public opinion is
1:15:22
moving get out in front of the parade decide the case without reference to original stockholm and if your political
1:15:29
instincts are correct your decision will be accepted including my original license
1:15:34
um can you say a bit more about why overwhelming public acceptance should
1:15:40
matter to an original asked or is difficult to write about us well i think
1:15:45
sort of compared to what so i mean if our principle is that judges
1:15:52
simply do what they think it's going to be that'll be the best consequence we're never going to be able to say that the
1:15:58
decisions are wrong right because essentially we're depriving us of any basis or fatigue of
1:16:05
the of the legality of the decision now judge kosner does say only in the open cases
1:16:11
i think that's significant because that does suggest that maybe in the non-open cases
1:16:18
that tax and legalism and so forth ought to ought to control
1:16:24
uh and what worries me is the idea that because there are some open cases we
1:16:30
then leach the rest of the law of his uh of its uh legalism
1:16:38
you know precedent is uh you're the the question is is good i just say the whole the point that i make
1:16:44
about precedent is because i actually think that there are three things to be said precedent is greatly under
1:16:50
theorized in our system so this is not the basis of a huge
1:16:55
uh thought on my part that i can draw on much from others but
1:17:01
it seems inevitable and and if hamilton is right indispensable that we have a doctrine
1:17:08
across them right and the question and then the first point i would make is what is
1:17:14
really essential is that we have some kind of a consistent doctrine of precedent because
1:17:20
what is not acceptable is to have justices when they are confronted with say
1:17:27
a decision that they don't like call it power versus hardware
1:17:32
feel perfectly free to to ignore the precedent but when they're
1:17:38
confronted with a precedent they do like say roe versus wade are
1:17:45
say well the president is binding and we're not going to go with it what i say is that the only
1:17:51
principle that i can think of that that both might have some coherence
1:17:57
and also some democratic justification is to say the precedent becomes finding
1:18:05
in cases in which it has been fully embraced by the
1:18:11
by the people and i've realized that this is a bit of a fuzzy concept but basically whether where it's now
1:18:16
accepted where legislatures adopt it where it's almost where it becomes you know it's exceedingly
1:18:23
unlikely that the legislature is going to be passing laws the other way uh and
1:18:30
and which the people accept it it doesn't become doesn't make the original decision right i would
1:18:35
still say you know the original decision was probably wrong but what i what it does do is it says the judge today
1:18:44
needn't relitigate that case that is that you don't have to go back and
1:18:52
get and correct all the mistakes of our predecessors all right we can we can begin from now and move forward and
1:18:58
accept as uh and accept some mistakes of the past because they now have
1:19:03
democratic warrant and that is a legitimate thing for attention today
1:19:09
um i had intended to take a suppose oh sorry what how do you evaluate plessy versus
1:19:15
ferguson well since i think versus ferguson was
1:19:21
wrong on the day it was decided and by the time of 1954 the supreme court had
1:19:28
wised up to that i think it was entirely correct now was it illegitimate for the court saying
1:19:35
in those years i don't know what years they were you know 45 you know there was presumably a period
1:19:42
when they still adhered to plessy versus ferguson even after they may have lost they've
1:19:47
done it because it was a precedent i don't blame them for doing that i'm not saying that precedents can never
1:19:54
be overturned i'm saying that it is permissible for judges to rely on precedence
1:20:01
even if even if they're the original jurisdictional foundations and the cases
1:20:07
were were shaky or incorrect i'm not saying that they're ever uh written into stone
1:20:13
i think it's very it would be very strange to say that uh the precedence could
1:20:18
never be uh overruled judges
1:20:24
out of time we were supposed to take questions from the audience but i hope you all forgive me this is obviously not
1:20:30
a discussion to be interrupted
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