How political are judges? How political should they be?

Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court.
New York: Doubleday, 2007. 480 pages.

Richard Posner, How Judges Think.
Cambridge, MA: Harvard University Press, 2008. 400 pages.

Reviewed by Gareth Morley

These questions make Canadians nervous. Politicians recall the fate of Reform/Conservative MPs Randy White and Maurice Vellacott, both sentenced to political oblivion for running against the courts. Polls consistently show that judges enjoy high esteem, while the politicians who appoint them and the lawyers from whose ranks they are drawn do not. For decades, every law student has been exposed to the “legal realist” thesis that law is politics by other means,¹ and every litigator is intensely interested in the perspective and background of the judges before whom he or she argues. Publicly, however, the legal profession reacts with outrage to any suggestion that the line between law and politics is permeable. As a result, public policy discussions about how best to appoint judges and the appropriate limits of their power are difficult to conduct without provoking the charge of disrespect toward the Charter of Rights and Freedoms.

When Stephen Harper required Marshall Rothstein, his nominee to replace John Major on the Supreme Court of Canada, to testify before an ad hoc parliamentary committee, the move was widely denounced for politicizing the judicial selection process. The assembled parliamentarians received a stern lecture from Professor Peter Hogg, a supporter of the new process, warning them that they were to consider only the nominee’s “professional and personal qualities” for the office – not ideological leanings or the likely political effect of his judgements. They complied. Few substantive questions were asked, and none were answered.²

Replacing Justice Michel Bastarache for what is widely regarded as the Court’s Atlantic spot has been more contentious. Initially, a Supreme Court selection panel made up of two MPs from the government and one from each of the opposition parties was to come up with a shortlist. However, the opposition nominees to the panel objected to the government’s representatives being cabinet ministers and, according to the government, refused to “consider substantive business.”³ The Prime Minister unilaterally nominated Justice Thomas Cromwell of the Nova Scotia Court of Appeal, subject to questioning before another ad hoc committee after the federal election.

Harper’s actions were constitutionally presumptuous. If the appointment was conditional on Justice Cromwell’s appearance before the ad hoc committee, then it had not been made. But if it had not been made, then Harper could only “announce” that Justice Cromwell would be the one on the assumption he would be Prime Minister after October 14 – an assumption one would think a politician facing the electorate should be cautious about making.

Newfoundland and Labrador’s Justice Minister has angrily announced that Harper treated his province with “disrespect” by not considering a judge from Newfoundland and Labrador – suggesting a punitive motive on Harper’s part in the ongoing conflict with Premier Danny Williams.⁴ Ideological, as opposed to regionalist, attacks seem less likely, since Justice Cromwell is widely respected within the liberal legal elite, and was appointed a Court of Appeal judge by Jean Chrétien.

While court appointments in the 19th and early 20th centuries, including appointments to the Supreme Court of Canada, were of considerable patronage interest, they did not figure in ideological or policy debates. The ultimate decisions were made in London by British judges sitting as the Judicial Committee of the Privy Council. In the 1930s, progressive Canadian intellectuals decried the Judicial Committee for striking down R.B. Bennett’s modest New Deal legislation – just as the American Supreme Court was reversing itself and allowing Roosevelt’s more ambitioius equivalent. They succeeded in having appeals to the Privy Council abolished in 1949. After some signs of boldness in the 1950s, our highest court became extremely conservative and formalist in the 1960s, earning Ron Cheffins’s description of a “quiet court in an unquiet country.” The battles of the 1970s – over inflation policy, resources and constitutional change – differed from those of the 1930s and 1940s, but they continued to turn on decisions of politicians, not judges.

Entrenchment of the Charter of Rights in 1982 put the Court near the centre of Canadian public policy, and undoubtedly raised the stakes of appointment. Unquestionably a primary actor in criminal procedure, abortion, gay rights and Aboriginal policy, the Supreme Court has recently, and controversially, extended its bailiwick to medicare and public sector labour relations.⁵ Interest groups rate judges on the basis of their inclinations toward the issues the group cares about.⁶ And academic empirical work demonstrates some connection between party of appointment and the way intermediate appellate judges rule.⁷ We may not like to talk about judicial politics, but that doesn’t mean it doesn’t exist.

Moreover, it seems reasonable to think that the political salience of judicial appointment in Canada will only increase. It is difficult to find clear ideological differences between Supreme Court justices appointed by Mulroney and those appointed by Trudeau or Chrétien. Although more liberal and more conservative judges can be identified, on the highest court at least, these labels do not tend to track party of appointment. But ideological differences between the major parties, particularly on matters susceptible to “rights talk,” are greater than they used to be, and ideological orientations among judicial appointees may well loom large in the near future. We may look back at the sparring over the process of Justice Cromwell’s appointment as a harbinger of intense ideological conflict in the future.

Nine workaholics: The U.S. Supreme Court

To glimpse what that future will look like, it is tempting to look south. There can be no doubt about the political salience of the judicial system in the United States.

From the time the Democrats took control of Congress in the fall of 2006 to the financial crisis in the fall of 2008, neither they nor President Bush initiated much policy change. But in that same two-year period, the Supreme Court of the United States upheld abortion laws banning “partial birth,” thereby reversing their decision seven years earlier; struck down capital punishment for rape of a child; abolished the automatic exclusion rule for unconstitutional searches; invalidated government attempts to actively desegregate schools; invalidated the Military Commissions Act on the grounds that it unconstitutionally suspended the right of habeas corpus; and overturned the District of Columbia’s gun control laws.⁸ The hot-button issues that move the partisans of both the Democratic and Republican coalitions always seem to end up in court – which is, notoriously, where the 2000 presidential election was decided.

In almost every one of these cases, a solid bloc of four liberal justices (John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) faced off against an equally solid bloc of conservatives (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito), with Justice Anthony Kennedy providing the swing vote. The importance of confirmation battles is underscored by the fact that Kennedy became a Supreme Court justice because of the defeat of Ronald Reagan’s original nominee, Robert Bork – a fearsomely conservative jurist who would undoubtedly have voted with the right on every one of these cases. Had Bork been nominated instead of Kennedy, it is highly likely that the constitutional right to abortion found in Roe v. Wade would have been undone in 1992.⁹

Jeffrey Toobin provides a solid journalistic guide to the battles that led to the current Roberts Court. Toobin is a legally trained writer for the New Yorker and analyst for CNN. His previous books addressed the O.J. Simpson, Monica Lewinsky and Bush v. Gore circuses. It is a greater challenge to make the usually buttoned-up jurisprudence of the U.S. Supreme Court interesting and accessible, but Toobin does a good job of providing a readable account.

Toobin’s book is modelled on Bob Woodward’s The Brethren, which skewered the Burger Court in the late 1970s, and Woodward helpfully contributes a blurb for Toobin. Unlike Woodward, Toobin is unable to break any stories that would be genuinely surprising to casual court-watchers – perhaps because the Rehnquist Court was more disciplined than its predecessors in the 1970s. So we learn that Clarence Thomas’s fellow judges disapproved of his interview with People magazine, that ideological opponents Antonin Scalia and Ruth Bader Ginsburg enjoy attending operas together, and that confirmed bachelor David Souter’s female colleagues have repeatedly tried to set him up with eligible women – to no lasting success. Either the private lives and animosities of this particular group of workaholics are exceedingly boring, or Toobin lacks Woodward’s sources.

Toobin may not have newsworthy stories to break, but he leaves us in no doubt about how political, and politically polarized, the Court is. He reports that Chief Justice Rehnquist eventually became completely cynical about legal reasoning. According to Toobin, Rehnquist came to the conclusion that all that mattered was which side had the votes. For Toobin, the story of the Rehnquist Court was one of a judicially conservative revolution gradually becalmed by the politicking skills of some of the liberals (particularly William Brennan, Stevens and Breyer) and by the ambivalence of its moderates, Justices Sandra Day O’Connor and Kennedy. Kennedy and O’Connor joined with the conservatives in giving George W. Bush the presidency in December 2000 – Toobin shows how eager Kennedy was to have the Court intervene.

Both O’Connor and Kennedy came to see themselves as part of (and perhaps leaders in) an international corps of judges somehow engaged in a common task of defining human rights, defending judicial independence and upholding the “rule of law.” This corps has emerged from the extension of U.S.-style judicial review of legislation through the democratic world, especially in those countries having democratized since 1990. O’Connor and Kennedy may have been on the “right” of this globalized judiciary, but they came to care about its fate and their reputation within it.

Nothing could be more alien, either intellectually or emotionally, to their fellow Republican appointees Scalia and Thomas. Through the Clinton Administration and George W. Bush’s first term, Scalia’s witty and acerbic rhetoric became increasingly directed at the moderates, who responded by drawing closer to the liberals, none of whom are radicals in any event. (Stevens and Souter were also Republican appointees; Breyer was one of the minds behind deregulation in the early 1980s and has many ties with moderate Republicans; Bader Ginsburg, appointed by Clinton, was demonized by culture warriors like Pat Buchanan but was found acceptable by the Senate Republican leadership.) The result is a court that is neoliberal in economics, but with a fair degree of social liberalism. O’Connor’s retirement and Rehnquist’s death in 2005 have pushed the U.S. Supreme Court to its current configuration, in which a single moderate (Kennedy) holds the balance. Kennedy’s libertarian streak has obliged the Court to act as a significant check on the “war on terror,” despite its traditionally deferential approach to national security.

It is highly likely that there will be new vacancies, especially on the liberal side, during the next presidential term. No one can seriously think that the future evolution of U.S. constitutional law depends to any substantial degree on the cogency of argument or the specificities of evidence. Rather, it turns on which party controls the White House and the Senate and, in the latter case, by what margin. The U.S. Supreme Court is politics – and barely by other means.

Are judges like umpires?

While almost all honest observers would concede that the U.S. Court, and its future constitutional direction, have become part of the political process, there is much less agreement on the normative question of whether this is a good thing.

During his confirmation hearings, now–Chief Justice John Roberts claimed that judges ought to be like umpires. They should call cases as they see them, applying rules of the game that they are not empowered to change. The real action should be left to the long-dead framers and ratifiers of the Constitution and the elected lawmakers today. After all, “no one goes to a baseball game to see the umpire.”

Roberts’s folksy sports analogy was widely interpreted as a promise that he would be a moderate on the Court. That is not how leading American legal academics, on the left and right, interpret what Roberts is or should be doing. The claim that a particular method of judging is the only way to be faithful to The Law is made both on the judicial left and judicial right. It unites Judge Bork with his antagonist Professor Ronald Dworkin.

In How Judges Think, Seventh Circuit Judge Richard Posner ridicules Roberts’s analogy, all but accusing him of bad faith:

Neither nor any other knowledgeable person actually believed or believes that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires. We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will. Suppose some umpires thought that pitchers were too powerful and so they decided that instead of three strikes and the batter is out it is six strikes and he’s out, but other umpires were very protective of pitchers and thought there were too many hits and therefore decreed that a batter would be allowed only one strike.

In addition to being a sitting federal appellate judge, Posner is a prolific academic and no stranger to controversy. Best known in Canada for forcefully (and somewhat sarcastically) dismissing Conrad Black’s appeal and rejecting what he termed Black’s “no harm no foul” argument,¹⁰ Posner gained notoriety in legal circles for applying an explicitly reductionist neoclassical economic approach to law. Author of a widely used text (Economic Analysis of Law), he argues that the genius of the common law is that decisions evolve over time to advance economic efficiency. Enhancing economic efficiency is both empirically what courts do and the appropriate goal of law. Courts do not afford view rights to owners of existing property, for example, because such rights would render transaction costs for future builders unduly costly.

Posner’s positions are often controversial: rape should be criminalized so men do not inefficiently avoid the market for permanent sex partners; adoption would be better coordinated through an auction for babies.¹¹ Appointed to the Seventh Circuit in 1981 as part of Reagan’s attempt to transform the ideological character of the federal judiciary, he has been a well respected and collegial judge – distinguished by his productivity, but without the radicalism of his academic work. He has brought his wide-ranging, reductionist and contrarian intellect to bear on a range of issues. Like Toobin, he has written on Monica Lewinsky and Bush v. Gore (although not O.J. Simpson). In his writings, he has applied his economic approach not only to sex and baby auctions, but also to old age, jurisprudence, antitrust, intellectual property, law and literature, public intellectuals and national security.

In How Judges Think, Posner sticks closer to home: his principal subject is the U.S. federal appellate courts, although he considers elected state judges and the comparative careers of the judiciary in European civil-code countries and in Commonwealth common-law countries (principally Britain). Posner has no doubt that judges are, and should be, policymakers attempting to find the most practical and reasonable solution to the problems they are faced with. In doing so, they apply their moral and political loyalties and values. Politicians, interest groups, successful litigators and the judges themselves know this. Those who pretend otherwise, Posner thinks, engage in mystification and humbug.

Posner’s version of the legal realist position has been somewhat refined through responding to the neoformalist¹² critique and through his own experience. He recognizes that lawyers and judges take traditional legal sources – precedents, the texts of laws, contracts and other legal instruments – seriously and have no trouble applying them in easy cases. However, easy cases are unlikely to be litigated to the appellate courts. Most of the cases that fill the law reports could not be straightforwardly decided on the basis of formal legal sources and, Posner argues, the reasons given in those reports do not reflect the real motives for the decisions. Such reasons are after-the-fact rationalizations, typically written (in the U.S. federal courts at least) by law clerks.

Posner does not think judges decide on the basis of personal animosity or sympathy with individual litigants or their lawyers – the form of bias most laypeople worry about. As a law-and-economics guru, Posner notes that judicial incentives to decide a particular way are kept deliberately weak. However, the very weakness of the incentives increases the importance of the selection (and self-selection) process. The key to understanding the decisions judges make is understanding the kind of person who gets (and accepts) a judicial appointment: hard-working, bright, risk-averse and politically mainstream. Posner argues that it is the sociological similarity of the people in the judiciary that makes law predictable, not some science of law known to the initiated.

For Posner, the Supreme Court of the United States in particular is a “political court.” While he doubts that the legal issues decided by ordinary appellate courts can be resolved using legalist sources alone, he also recognizes that most appellate decisions have low salience with the broader public. They are political, but usually not high-profile “big-P” Political. Even the Supreme Court docket contains many cases dealing with technical issues of procedure and construction of obscure statutes. But because it controls the cases it will take (a tiny proportion of those decided by the appellate courts below it), because it is very weakly bound by precedent and because it is “drawn moth-like” to the flames of hot-button social issues, the Supreme Court does deal with high profile “big P” Political issues. Posner argues it is best seen as an oligarchic legislature.

“Realist” accounts of judges’ functions are often attacked on the grounds that they permit a judge to do whatever he or she wants, thereby threatening democracy. Posner argues the opposite: a judge who understands the freedom he or she exercises should be more careful about using it. Pragmatic reasoning should be based on institutional consequences as well as substantive precedents. In particular, a judge who understands that broad constitutional principles can justify any number of outcomes should be more willing to leave controversial decisions to legislatures. There is nothing inevitable about this inference, as Posner would presumably admit. If a realist or “pragmatic” judge doubts the wisdom of democracy and thinks that a countermajoritarian decision will stick, there is no reason internal to realism or pragmatism to stop that judge from overruling the legislative will.

Posner argues that judges obtain some legitimacy from their manner of appointment, but that the ultimate justification for judicial power is that it is necessary in a country with the decentralized and competitive democratic institutions and legalistic and individualist culture that prevail in the United States. Here Posner is undoubtedly trying to deflate the heroic self-image of lawyers and judges as defenders of human rights. (The most annoying chapter for his colleagues will undoubtedly be the one in which he argues against salary increases for federal judges.) Judges may not be champions of the downtrodden, but they have an important pragmatic role. The common-law model of the powerful appellate judge advances individual liberty and economic efficiency more than the bureaucratic civil-law judge, although the latter better reflects democratic principles.

Posner attacks two sets of issues for two different audiences, and one of the weaknesses of his account is a failure to distinguish between them. Most of Posner’s book concerns the ordinary decision-making of intermediate appellate courts on matters of statutory interpretation, procedure and common law. Posner is right that close cases (the kind that appellate courts get) inevitably involve policy. However, it does not follow that they only involve policy. The reason the case is a close one may be that the formal sources (precedent and text) point in one direction while policy points in the other – and judges do not always pick policy in these circumstances. Judges may well decide a statute or precedent is clear, even when they disagree with it.¹³

This debate is of interest mostly to legal professionals. Even when courts do rely on policy grounds for decisions (whether openly or covertly), the policy objectives at issue are generally not particularly controversial. As Posner himself notes, no one is opposed to enforcing solemn agreements or making those at fault pay for accidents. In the infrequent case where there is political salience to a matter of private law or statutory interpretation, the politicians are free to correct the courts – although it is easier to do this in the Canadian parliamentary system than in the American one of divided legislative authority.

But constitutional law raises different questions, and here Posner acts not only as legal academic and judge but also as a public intellectual. Although even constitutional decisions are susceptible to being “gotten around” by politicians, it is not easy. America still has the abortion regime created by Roe v. Wade in 1973, and looks to have it for a good while yet. Moreover, constitutional decisions have a much greater tendency to be about matters of political salience. And so it is in the constitutional sphere that the search for legitimacy in a disembodied law is most pressing.

There are essentially two approaches to trying to find this legitimacy. The first is to try to show how simple majoritarianism diverges from a more ideal form of democracy, and to suggest the judicial task is to bridge the difference. For the economically inclined, this approach is typically associated with public choice theory. Disappointingly, Posner has little to say about the extent to which failures in democratic government justify judicial intervention, although he rightly cautions that we should compare non-ideal democracies not to ideal judiciaries, but to real ones.

The other approach to justifying countermajoritarian judicial review is “originalism” – believed to be discredited a generation ago, but now firmly entrenched in both academic and judicial circles in the United States. At one time, “original intent” was a uniquely right-wing slogan, and it was vulnerable to several criticisms. Many issues that come before courts could not possibly have been thought about by the originators of a historic constitutional document: what could Madison or Hamilton have thought about whether references to an “army and navy” allow for an air force or whether a wiretap is a search and seizure? On those issues they did consider, it is quite possible that the “framers” disagreed with one another, and they may well have assumed that subsequent courts would use their own judgement on hard questions. (There is evidence from the Federalist No. 70 that Hamilton thought so, and it is beyond dispute that the authors of Canada’s Charter of Rights did). Moreover, it is hard to see what the legitimacy would be in allowing the intentions of long-dead slaveowners to determine the law today.

However, over the last generation, a more sophisticated form of originalism that focuses on “original understanding” has arisen. The new originalists (who sometimes include Antonin Scalia himself) distinguish between the meaning of a legal concept and its “expected application” in concrete decisions. While the meaning remains the same, the expected application is correctly subject to change as new evidence, arguments and judges arise. In this view, “cruel and unusual punishment” means the same now as it did in the 18th century – punishment that is in excess of what a civilized society should tolerate. What has changed is not the meaning of the words, but what we are prepared to tolerate.

There are difficulties with the new, more sophisticated originalism. What it gains in plausibility, it loses in determinacy. Almost any decision – even the invalidation of all death penalty statutes or an order requiring a more progressive income tax – could conceivably be “originalist” on this approach. But in dismissing originalism as nonsense, Posner does not consider its most currently influential form.

Posner’s descriptive theory is also weakened by its ahistorical quality. There is too little about how the Reagan Administration moved away from the traditional patronage-based approach to appointment and decided to appoint more ideological judges (thereby giving Posner his position) and how the Democrats ultimately responded by transforming the confirmation process into a negotiation over the ideological quality of federal judges. Interestingly, the very politicization of the selection process (in the sense of greater attention to the ideology of the nominees, as opposed to simply their party connections) may be a good thing for the system’s overall legitimacy and effectiveness. After the Democrats defeated Bork, it became necessary for the president and the senators in the opposition party to compromise somewhat on appointments. The result may be bloc voting, but it is also somewhat democratic – albeit with a lag. And even the lag may be a good thing, because it helps stabilize public policy.

Judicial politics: Open or closed?

No Canadian Toobin has arisen to air the internal politics of our court. A Canadian Posner is still unthinkable: our judges are unlikely to engage in spirited jurisprudential polemics with our Supreme Court. But Posner’s fundamental points are as valid for Canadians as for Americans. Our courts are just as unable to resolve difficult legal questions with reference to legal sources alone. They are just as dependent on their conceptions of what good policy would be.

The objections to an open selection process “politicizing” the judiciary are misguided: a judiciary that can strike down laws is necessarily politicized. The real question is whether the politics involved will be open or closed. It is crazy for politicians with a vision of where they want the country to go not to be interested in the ideology of appellate judges, particularly on the highest court.

While no one wants mindless partisan bickering, we should want to know how our own Nine will decide major issues. Our elected politicians should ask more of potential Supreme Court justices than that they be personally and professionally competent: they should ask those nominated to what is now our real chamber of “sober, second thought” how they think.

We should also be concerned about the notwithstanding clause falling into desuetude. Politicians will find other ways to avoid court decisions they do not like, but those other ways will be less transparent than resort to the notwithstanding clause. Court review is not inherently bad: as Plato argued two and a half millennia ago, and as subsequent experience has demonstrated, democracy is capable of making terrible mistakes. The difficulty is that intelligent, hard-working elite lawyers are equally capable of making mistakes, and there are fewer mechanisms to correct them. Canada pioneered a compromise in which the courts would be able to review legislation, but the last word would be left with the representatives of the people. Unfortunately, that compromise has been subjected to two and a half decades of abuse at the federal level, from Trudeau through Mulroney and Chrétien to Martin.

If we look south of the border, we can see that the attempt to construct and give power to institutions that are supposedly isolated from politics simply brings politics into appointments to those institutions.

Notes

¹ Paul Weiler applied this aphorism to the Supreme Court of Canada in his 1974 book (In the Last Resort: A Critical Study of the Supreme Court of Canada), as have innumerable political scientists and legal academics since then.

² For a denunciation of the idea before it was implemented, see Ed Ratushny, “Confirmation Hearings for Supreme Court of Canada Nominees: NOT a Good Idea!” University of Toronto Conference on Judicial Appointments in a Free and Democratic Society, April 19, 2004, retrieved from www.law-lib.utoronto.ca/conferences/judiciary/readings/confhearings.doc; Peter W. Hogg, “Opening Remarks to Ad Hoc Committee on Supreme Court Appointment,” February 27, 2006, retrieved from here; Ron Levy, “Judicial Appointment: Trust and Reform” (2007) 40 U.B.C.Law Rev. 195, fn. 9 (“Rothstein faced only a few substantive questions, which he declined to answer.”)

³ “MPs Clash over Vetting Supreme Court Candidates,” Toronto Star, August 11, 2008, retrieved from here; “PM Announces Nominee for Supreme Court Appointment,” Press Release from the Office of the Prime Minister, September 5, 2008, retrieved from here.

⁴ Kirk Makin, “Harper Blasted over Hasty Top-Court Nomination,” Toronto Globe and Mail, September 6, 2008, retrieved from here.

⁵Chaoulli v. Quebec (Attorney General), 2005 SCC 35; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27.

⁶ For example, Chris Schafer, Judging the Judges: The Supreme Court of Canada’s Record on Individual and Economic Freedom and Equality (Calgary: Canadian Constitution Foundation, 2007), retrieved from here, rates Supreme Court of Canada justices from a conservative-libertarian perspective.

⁷ Moin A. Yahya and James Sribopoulous, “Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario,” (2007) 45 Osgoode L.J. 315–363, shows a statistically significant link between party of appointment and outcome.

⁸Gonzales v. Carhart, 550 U.S. ___ (2007), distinguishing Stenberg v. Carhart, 530 U.S. 914 (2000); Kennedy v. Louisiana, 554 U.S. ___ (2008); Hudson v. Michigan, 547 U.S. 586 (2006); Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. ___ (2007); Boumedienne v. Bush, 553 U.S. ___ (2007); District of Columbia v. Heller, 554 U.S. ___ (2008).

⁹Casey v. Planned Parenthood, 505 U.S. 833 (1992).

¹⁰U.S. v. Black (unreported decision of the 7th Circuit, June 25, 2008), retrieved from here.

¹¹ Elisabeth M. Landes and Richard A. Posner, “The Economics of the Baby Shortage,” (1978) 7 J. Legal Stud. 323.

¹² Neoformalists are academic and judicial critics of realism and pragmatism who argue that policy-oriented judging ignored what was specific about law and exaggerated how indeterminate law really is.

¹³ It is possible to argue that the reasons for following these formal sources are themselves policy reasons, involving consistency of the law, deference to democratic decision-making and so on. The trouble with this response is it renders the distinction between formalism and pragmatism an empty one.