A distinguished and experienced appellate court judge, Richard
A. Posner offers in this new book a unique and, to orthodox legal
thinkers, a startling perspective on how judges and justices decide
cases. When conventional legal materials enable judges to ascertain
the true facts of a case and apply clear pre-existing legal rules
to them, Posner argues, they do so straightforwardly; that is the
domain of legalist reasoning. However, in non-routine cases, the
conventional materials run out and judges are on their own,
navigating uncharted seas with equipment consisting of experience,
emotions, and often unconscious beliefs. In doing so, they take on
a legislative role, though one that is confined by internal and
external constraints, such as professional ethics, opinions of
respected colleagues, and limitations imposed by other branches of
government on freewheeling judicial discretion. Occasional
legislators, judges are motivated by political considerations in a
broad and sometimes a narrow sense of that term. In that open area,
most American judges are legal pragmatists. Legal pragmatism is
forward-looking and policy-based. It focuses on the consequences of
a decision in both the short and the long term, rather than on its
antecedent logic. Legal pragmatism so understood is really just a
form of ordinary practical reasoning, rather than some special kind
of legal reasoning.
Supreme Court justices are uniquely free from the constraints
on ordinary judges and uniquely tempted to engage in legislative
forms of adjudication. More than any other court, the Supreme Court
is best understood as a political court.
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