A Pragmatic View of the Judicial Process

Is `reasonable result' the best test? Who will judge the judges? One scholar's vision of jurisprudence is reviewed here by two legal experts.

THE PROBLEMS OF JURISPRUDENCE, By Richard A. Posner. Cambridge, Mass.: Harvard University Press. 485 pp., $29.95 FEDERAL circuit judge Richard A. Posner's cascade of lapidary interpretive insights in ``The Problems of Jurisprudence'' is stimulating reading. He debunks the entire gamut of theories purporting to solve - like a Newtonian equation - the tasks of defining law and elaborating proper constraints on the interpretive power of judges regarding the Constitution and statutes. He convincingly demonstrates that reasoning labeled ``legal'' is commonplace among a host of nonlegal disciplines; that many legal questions have no single ``right'' answer; and that judging requires a mastery of nonlegal knowledge for enlightened decisionmaking that promotes the public weal.

The impending confirmation hearings on the nomination of David Souter to the United States Supreme Court make Posner's trenchant examination of the art of judging especially timely. The nomination rivets attention on competing theories of constitutional and statutory interpretation, and invites an appraisal of which is most beneficial to the rule of law and public welfare. On this score, Posner's customary expository persuasiveness is unsatisfying.

Posner posits: ``I can think of no better approach than for judges to conceive of their task, in every case, as that of striving to reach the most reasonable result in the circumstances - which include though are not limited to the facts of the case, legal doctrines, precedents, and such rule-of-law virtues as stare decisis.'' Posner prefers his ``reasonable result'' standard to a pedigree approach, which demands that judicial decisions be anchored to the text or principles of the Constitution or statutes. But the reasons adduced for the preference are problematic.

The touchstone for appraising competing interpretive standards, Posner correctly asserts, is unalloyed pragmatism: which theory best achieves fairness, justice, and aspirations of the community. Posner's reasonable-result norm is worrisome because its use could be safely entrusted only to a minuscule percentage of judges endowed with his brilliance and irreproachable character. But human nature and experience teach that most judges are intellectually and temperamentally incapable of differentiating between personal policy preferences and community benefit. How could an outcome they think is beneficent be unreasonable?

The reasonable-result standard would readily accommodate counterproductive Supreme Court precedents denouncing congressional power to prohibit slavery in the territories and a federal income tax; permitting the exclusion of women from the franchise and professions; sanctioning racial discrimination and blessing the detention of citizens of Japanese ancestry during World War II; demanding equality of populations among electoral districts and ordering police to recite Miranda warnings prior to interrogating suspects; creating a constitutional right to an abortion; curbing government financial aid to nonpublic schools; and, confounding administration of the death penalty. This list is illustrative, not exhaustive, and raises a question as to whether federal judges are trustworthy recipients of the Posnerian reasonable-result talisman.

The pedigree approach is no panacea against unreasonable results; indeed, it was misused in most of the counterproductive decisions listed in the prior paragraph. But in the long run, the pedigree approach seems more advantageous than Posner's reasonable-result obelisk.

The wayward consequences of a decision rooted in constitutional or statutory pedigree can with greater confidence be ascribed to elected voices of the community; thus, they are less likely to engender social strife or turmoil than would misuse of the unabashed policy-oriented reasonable-result standard. The 1857 ``Dred Scott'' decision begot greater violence and animosities than the Kansas-Nebraska Act addressing slavery.

The pedigree approach betters the reasonable result on the ground of legitimacy. Founding Father James Madison endorsed the former without contemporary rebuke, as did statesman and President Thomas Jefferson. The architects of the Constitution, moreover, were animated to circumscribe government discretion in recognition that a large percentage of officeholders in all three branches would be of modest intellect and with a propensity toward aggrandizement, not the rara avis of Posner. Their intuition would have shunned the reasonable-result test as too demanding in application for judicial mortals, and thus a recipe for usurpations.

To sum up: Although the pedigree approach cannot incontestably be proved to yield better pragmatic results than would Posner's reasonable-result alternative, the frailties of judicial selection suggest hypercaution in expanding the opportunities for judicial mischief. As the Souter nomination shows, the most talented jurists blessed with policy wisdom are now blacklisted from the Supreme Court because of the Robert Bork confirmation fiasco. Why augment the power of an institution that places a premium on the mediocre and intellectually timid?

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