Monday, March 3, 2014
Judicial pragmatism and judicial restraint as dispositions toward constitutional adjudication rather than constitutional theories
Many insights seem so obvious once you have them that you wonder whether they are insights at all. And some may be so obvious to others that putting them down on paper for oneself or others may be a waste of time. But it seems like many people share a similar confusion to one that Marc and I experienced when we began writing about Judge Posner's judicial pragmatism and Judge Wilkinson's judicial restraint. So we decided to use Part III of our investigation of their writings about (and while engaged in) constitutional adjudication to develop what seemed like an insight to us. This is the claim that judicial pragmatism and judicial restraint are not best understood as constitutional theories to replace something like originalism or Dworkinian moralism, but are instead better understood as dispositions toward constitutional adjudication.
We think it's helpful to make this claim explicitly because both Posner and Wilkinson have pitched their approaches as substitutes for other constitutional theories on offer, and academic critics have responded in kind. But this leads to the judges talking past the scholars, and vice versa. Once one understands judicial pragmatism and judicial restraint as dispositional accounts of the judicial office and judicial excellence in constitutional adjudication, one can offer criticisms that focus directly on the adequacy and depth of their accounts of good judging. Such criticisms are not a replacement for criticisms grounded in constitutional theory; those remain important. But the kinds of criticisms that we make are of a different sort. We argue, for example, that Judge Posner misapprehends Chief Justice Marshall's greatness as a judge when he adopts Holmes's understanding of Marshall as a "loose constructionist." And we contend that Judge Wilkinson is mistaken when he describes the quasi-Thayerian judicial restraint he advocates as representing "mundane and humdrum truths" or a distillation of the values of traditional adjudication. In fact, we contend that Thayerian judicial restraint is the first "cosmic constitutional theory" of the kind that Wilkinson criticizes. Although we do not put it quite this way in the paper (which does not mention Walker Percy), Thayerian restraint was a response to judges having become "Lost in the Cosmos."