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Posner on Legalism and Authoritarian Personalities

By Jack M. Balkin

In a series of posts, I have raised various points Judge Richard Posner makes in his fascinating new book, How Judges Think. To put it with a bit of exaggeration, Posner skewers (with great style) just about everyone who says anything about judging, with the exception of pragmatic judges and advocates of pragmatic judging. A main theme of the book is his attack on the many delusions of "legalists." His prime example of a legalist is Justice Scalia (he identifies me as a legalist as well, so it's a broad category). Here is one of his more interesting arguments about legalists:

Some judges are more comfortable with rules, others with standards, and the reasons may be largely temperamental--may in fact be related to the difference between the authoritarian and the nonauthoritarian personality, which in turn is correlated, though perhaps only weakly because much more than personality influences a judge's behavior, with the judge's preference ordering of legalism and pragmatism. The legalist loves rules because they promise (though it is a promise frequently broken in application) to curtail judicial discretion by confining judges to determining a handful of prespecified facts.

In an earlier discussion, and in this passage, Posner suggests that authoritarian personality types are attracted to legalism (judges should rule in strict accordance with the law), whereas nonauthoritarian types have an affinity with a pragmatic attitude toward judging (judges should try to reach the socially beneficial decision, all things--including the law--considered).

Most of the "legalists" Posner identifies are conservatives politically, which suggests (although Posner does not) that there might be an affinity of some sort between political conservatism, legalism, and authoritarian personalities.

Interestingly, however, Posner conducted a study which shows that current conservative federal appellate judges vote in a political direction at a much higher rate than liberal judges, which suggests that, while they may espouse a commitment to legalism, they regularly vote like politicians.

Full post as published by Balkinization on June 03, 2008 (boomark / email).