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How to Describe Judge Posner

By Jack M. Balkin

Tuesday's NYT has an article on criticism of DC v. Heller from "the right" or "conservative judges" and the two examples are Judges Posner and Wilkinson. The article doesn't appear to call Judge Posner a "conservative" but definitely locates him on the right.

With respect to Posner's views on constitutional interpretation, I've often wondered whether standard left/right, liberal/conservative categories are helpful. Posner describes himself as a pragmatist, but this term provides no hint of how alienated Posner is from anything resembling standard or traditional methods of constitutional interpretation. In this respect, Posner's opposite number is not a usual liberal suspect like Laurence Tribe, but Philip Bobbitt, who argues for the value of multiple modalities of interpretation.

Posner won praise from liberals for criticizing Robert Bork's originalism when Bork was nominated for the Court. But what liberals tend to miss about Posner is that he feels the same way about all proposed methods of interpretation, whether they are based on text, history, structure, doctrine, common law tradition, it doesn't matter. All have to swim in the same acid vat of Posnerian skepticism. You could accurately call Posner a radical if he appeared to understand the techniques of interpretation and rejected them wholesale for good reason. But Posner rarely tries. Standard constitutional arguments leave him cold.

So is this "conservative?" Certainly not. Posner has rarely mentioned anything worth conserving in the American constitutional tradition, except perhaps Holmes. Is it on "the right?" If the right typically rejects all forms of constitutional interpretation as meaningless from a pragmatic point of view, then yes. Otherwise, we should appreciate that Posner writes from a perspective on American constitutionalism that is virtually unique.

Full post as published by Balkinization on October 20, 2008 (boomark / email).