Attitudinalists and legalists disagree about the extent of political judging rather than about its existence. One source of that disagreement is that attitudinalists, who mostly are political scientists rather than lawyers, are positive theorists, while most legalists are lawyers, who—inveterately normative as most lawyers are—very much want, and are predisposed by their training and by the mores and understandings of the profession to expect, judges to conform to the legalist conception. Legalists' normative project would be undermined if most judges, and not just an errant minority, turned out to be guided by politics or other factors that do not enter into legalists' conception of "the law." In contrast, since the subject of political science is politics, political scientists expect judging to be imbued with politics—and even want it to be, as demonstrating the power of political science to illuminate behavior.
But what if attitudinalists and legalists alike are wrong about what the law is? What if law in the judicial setting is deeply, intrinsically political, in the sense of responsive to judges' political preferences, but also deeply, intrinsically legalist, in the sense of heavily influenced by conventionally "legal" materials and techniques of decision making? Then strict legalists might be off base both as positive and as normative theorists, while political scientists' positive theory might be off base because they exaggerated the degree to which judicial decisions are motivated by politics. I think both things are true, that legalists have too narrow a sense of what law (or doing law) is and that attitudinalists exaggerate the influence of politics, not only partisan politics but also ideological politics, on judicial behavior, at least below the level of the U.S. Supreme Court. I am not criticizing the attitudinalists' empirical work, but merely trying to characterize accurately what they have found.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 47)
Note from KBJ: I have to wonder whether Judge Posner means by "positive" and "normative" what most people mean. A normative theory of adjudication tells judges what they ought to do; it says nothing—literally, nothing—about what they in fact do. So how could legalists' "normative project" be "undermined" by any description of how judges behave? Even if judging is political, it's an open question whether it should be. Legalists say it shouldn't be. Judges who allow political considerations to influence their decisions are not acting within the scope of their role. They are acting as legislators. Posner makes the same crude mistake in the second paragraph. Imagine thinking that the pervasiveness of lying undermines the proposition that it's wrong to lie. Lying is wrong even if it happens all the time! Murdering is wrong even if it happens all the time! Rape is wrong even if it happens all the time! Bringing political considerations to bear in judicial decision-making is wrong even if it happens all the time!
