Richard Posner, a federal appeals court judge in Chicago, has written an op-ed in the Post today describing the difference between judges’ “interpreting” law and “creating” it. He sees both notions as appropriate vehicles for judges to use in deciding cases, and the Supreme Court as an inherently “political” institution. Posner, although at one time viewed as an arch-conservative, has seen his positions evolve into a center left point of view as Republican judicial ideology swing wildly to the extreme right over the last generation. This piece is a succinct and forceful read. He’s also right.
Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen.
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When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of “priors.” Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics.
The idea that the role of federal judges is passive – calling balls and strikes, in the view of Chief Justice John Roberts, is for Posner a fiction. Again, I agree. It’s a shame that that someone with real principles like Posner wasn’t a GOP nominee to the Court over the past generation. But he was viewed as insufficiently dedicated to GOP political goals. He’s a great writer and even though I disagree with much of his ideology, I have great respect for his intellect and his philosophical rigor.