What weight should we give to the fact that many, maybe most, judges would if asked deny that they bring preconceptions to their cases? Very little. That denial would reflect in some instances a lack of self-awareness and in others the rhetorical pull, or more bluntly the propaganda value, of the legalist model of judging. Judges want to deny the role of subjectivity in judicial decision making lest they undermine their claim to be a deservedly independent branch of government in which reason rules, obviating a need for political or other external constraints on the exercise of discretion. They want to convince people that they wear blinders that keep them from straying off the beaten path; that they are society's dray horses. They also want to duck blame for unpopular decisions ("the law made me do it"). So they say—you will find this in almost every case involving the interpretation of a statute—that in interpreting statutes judges "start with the words of the statute" and usually end there, thus avoiding the treacherous shoals of purpose and policy, for in interpreting they are merely manipulating words (verbal symbols), like mathematicians. Actually they start with the name of the statute, or some general sense of what it is about, perhaps recollected from previous cases; or with the often tendentiously cropped excerpts from the statute quoted to them by the lawyers; or with the spin that the lawyers place on the statute's words. There is always a context to reading, and it is given in advance of the encounter with the words themselves and shapes the reader's interpretation.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 72 [footnote omitted])
Note from KBJ: This paragraph is as blatantly cynical as anything you will ever read. That it comes from a sitting federal appellate judge is scandalous. Judge Posner is convinced that legalism is false (though he does nothing to refute it). The only puzzle, to him, is why anyone claims to be a legalist. Judge Posner's answer is "either stupidity [i.e., lack of self-awareness] or dishonesty." This sort of cynicism is, sadly, pervasive. Atheists such as Richard Dawkins are convinced that there is no god. The only puzzle, to them, is why anyone believes in a god. Their explanation is that people are insecure. It's comforting (they say) to believe in a supernatural father. Religion is wish-fulfillment! Progressives think it's obvious that homosexuals should be allowed to "marry." The only puzzle is how anyone could think otherwise. Their explanation is homophobia, which in turn is rooted in latent homosexuality.
Do you see the pattern? First, take a dogmatic stand about some controverted matter. Don't argue for it; simply assume it, or claim that it's obvious. Second, explain why those who disagree with you disagree with you. This explanation should be as insulting as possible, for that makes you look better by comparison. Legalist judges are stupid or dishonest. Theists are insecure. Opponents of homosexual "marriage" are homophobes. Opponents of Barack Obama's policies are racists. Supporters of the Iraq war are warmongers. Supporters of surveillance are fascists. And so on.
Keith Burgess-Jackson, J.D., Ph.D. 