Craig Green

What Does Richard Posner Know About How Judges Think?

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.