Paul Horwitz (University of Alabama School of Law) has posted Review - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner on SSRN. Here is the abstract:
This is a short review of two new books on judging - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.
And from the paper:
Despite their wildly divergent paths, though, Posner and Powell in fact share many common ties. Both, for example, share interesting and important views on how we might reform legal education – in Powell’s case, to focus more on “how constitutional questions can be resolved with integrity and their resolution expressed with clarity,” and in Posner’s to master conventional legal skills and then move beyond them and focus on the actual underpinnings of judicial decision. And although Posner might reject Powell’s approach as tending towards the “moral vanguardism” of a Justice Kennedy, he repeatedly emphasizes that some of the most important constraints on the judicial task are, “first, the desire for self-respect and for respect from other judges and legal professionals generally, which a judge earns by being a good judge, and, second (and closely related), the intrinsic satisfactions of judging, which usually are greater for a good judge than for a bad one.” So even a Posnerian judge may have recourse to the kinds of quasi-moral constitutional “virtues” that are at the heart of Powell’s work.
And a bit more:
Too much is missing from Powell’s account. Nowhere in his book do we find a serious accounting for the many real-world factors in which judicial decision making takes place: the role of law clerks as canned reasoners for judges who perforce need do little reasoning of their own; the extent to which judging is a social and collegial process rather than the purely solitary and deliberative act of a cloistered monk in a cell; the host of human motivations and limitations that drive and hem in a judge and make unlikely any effort to set down a reliable instruction manual for any would-be judicial Hercules; and any number of broader institutional factors that might add depth to his romantic view of the judiciary. His constant refrain that his picture of constitutional virtue must be true because “much of what we do and say and do in constitutional interpretation” would otherwise be meaningless, a “solemn mockery,” begs the question: What if it is? You cannot prove God’s existence by saying that life would be bleak if God did not exist; no more can Powell prove the necessity of his approach by arguing that it would be depressing to think otherwise. Posner writes that “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”; Powell’s apparent response is, then let us not acknowledge it. But that is not a proof; he is mixing his “is” and his “ought.”