Taking Posner Seriously: Politics as Law

This installment of my “Taking Posner Seriously” series is devoted to Richard A. Posner’s excellent essay “A Political Court“, which was published in the fall of 2005 as the Foreward to the Harvard Law Review‘s special issue on the 2004 Supreme Court Term. In summary, as Posner explains in Part II of his polemical essay (pp. 39-60), because the Supreme Court gets to decide which cases to hear, and because constitutional cases are ultimately about power (i.e. the “who decides?” question), and because the text of the Constitution itself is so open-textured and full of glittering generalities and thus open to multiple interpretations, Posner concludes (p. 40): “The more the Supreme Court is seen, and perhaps sees itself, as preoccupied with polarizing “hot button” constitutional cases, the more urgent is the question whether when deciding constitutional cases the Court should be regarded as essentially a political body …, exercising discretion comparable in breadth to that of a legislature.”

Alas, prior to the publication of Posner’s 2005 essay, the idea that “law is politics” was already old hat. Old-school “critical legal scholars” (or Crits, for short) had already noted the political nature of different areas of law, including the common law, and the many different ways in which law, politics, and culture are intimately connected. But what Judge Posner does in his 2005 essay that is so original, surprising, and damning is that he inverts the Crits’ “law-as-politics” thesis. For Posner, the legal rulings of the Supreme Court are not just politics disguised as law (i.e. the Crits’ radical thesis that “law is politics”); instead, those rulings are unabashed political decisions made by an out-an-out political body. In a word, Posner out-crits the Crits!!!

Posner’s conclusion about the political nature of the Supreme Court became all but obvious when five justices used their judicial power to appoint the 43rd President of the United States in late 2000 and thus override the results of that year’s presidential election, yet Posner himself had defended the decision in Bush v. Gore in his book Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (Princeton University Press, 2001), which is available here for free, by the way. How is it possible to explain this inconsistency between the theoretical Posner and the applied Posner? As I will explain in my next Posner post next week, the source of this gross and glaring inconsistency is most likely Posner’s theory of judicial pragmatism, a theory that (to paraphrase Winston Churchill) is the worst form of legal theory–except for all the others that have been tried!

Image credit: lawliberty.org

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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