Richard Posner may be America’s most celebrated living judge, and
although he does not sit on our highest court, his career marks an
unmatched fusion of judicial leadership and prolific scholarship. Given
such renown and experience, Posner’s recent book How Judges Think
cannot escape high expectations. Indeed, Posner cites his credentials
in offering to “part[] the curtains” and reveal truths about judging
that he thinks have been overlooked by bookshelves of prior commentary.
For professors, practitioners, students, and even other judges,
Posner’s lure may seem irresistible — after all, who wouldn’t like to
know how judges think? Yet the book does not match its promise. Posner
offers no descriptive anecdotes about his colleagues or himself, and he
proffers only meager evidence about judges’ behavior in the aggregate.
Instead, Posner’s arguments are conceptual or theoretical, and thus the
book describes primarily “how Posner thinks” and “how Posner thinks
judges should think.”
This Review criticizes several of Posner’s substantive points, but
my main argument is that his book is methodologically incomplete. Just
like the theorists he condemns, Posner discounts judicial history as a
determinant of judicial role. Judicial behavior is heavily influenced
by historical traditions, as is law itself. By neglecting the
foundational links between history and judicial conduct, Posner cannot
answer the questions posed by his book’s title, and this offers a
cautionary tale for the rest of us who study judicial behavior.