Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory

Notre Dame Law Review Volume 90 | Issue 2 Article 5 12-1-2014 Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory Marc O. DeGirolami St. John's University School of Law Kevin C. Walsh University of Richmond School of Law Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons Recommended Citation 90 Notre Dame L. Rev. 633 (2014) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\90-2\NDL205.txt unknown Seq: 1 8-JAN-15 14:41 JUDGE POSNER, JUDGE WILKINSON, AND JUDICIAL CRITIQUE OF CONSTITUTIONAL THEORY Marc O. DeGirolami & Kevin C. Walsh* ABSTRACT Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson—in the popular press, in law review articles, and in books—have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question—a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism © 2014 Marc O. DeGirolami and Kevin C. Walsh. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Associate Professor, St. John’s University School of Law, and Associate Professor, University of Richmond School of Law, respectively. We thank Jeremy Blumenthal, Samuel Bray, Richard Fallon, James Gibson, Philip Hamburger, Scott Hemphill, Orin Kerr, Randy Kozel, Corinna Lain, Joseph Landau, Allison Orr Larsen, Julian Davis Mortenson, Jeffrey Pojanowski, Richard Posner, Jack Preis, Jeremy Sheff, Adam White, and Adam Zimmerman for helpful comments on earlier drafts. We also thank Tracy Hermann, Alec Kast and Leah Stiegler for indispensable assistance with research. This Article benefited from presentations at the BYU ICLARS Conference, the Fordham Law School Junior Faculty Forum, the St. John’s Law School Faculty Workshop, and the Virginia Junior Faculty Forum. 633 \\jciprod01\productn\N\NDL\90-2\NDL205.txt 634 unknown Seq: 2 notre dame law review 8-JAN-15 14:41 [vol. 90:2 and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions—character traits that pertain to judicial excellence—that can and should be criticized on their own terms. INTRODUCTION “The most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits. . . . How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step!” —Joseph Story, Commentaries on the Constitution of the United States (1833) Not long ago, Chief Justice John Roberts dismissed academic legal writing as “abstract” and “philosophical” in ways unhelpful to the judiciary and “legal practice.”1 His comments elicited a flurry of responses, but the discussion rapidly exhausted itself. The reason may well be that the tension he highlighted has an enduringly familiar quality. There has always been a gap between theoretical and practical perspectives on law in the United States and the Anglo-American legal tradition more broadly. A tradition of circumspect separation stretches back at least as far as the anxious misgivings of medieval English lawyers and judges with respect to “academic generalizations about natural law” and its role in adjudication.2 Today, the distance between judges and academic theorists is particularly pronounced in constitutional law. Judge Richard Posner, for example, has argued that constitutional theory is a waste of time, ideologically motivated, and useless to judges.3 And Judge J. Harvie Wilkinson III has argued that all of the “cosmic” constitutional theories on offer now are fundamentally flawed and threaten democratic self-governance.4 Yet both Posner and Wilkinson—in the popular press, in law review articles, and in books—have advocated their own distinctive approaches to constitutional adjudication. Judicial pragmatism for Posner and judicial restraint for Wilkinson have been taken by many to be the same kind of theory that each criticizes. But both Posner and Wilkinson deny that they are offering a theory at all. Posner has gone even further, invoking Samuel Johnson’s old aphorism in likening a 1 A Conversation with Chief Justice Roberts at 29:00 (C-SPAN broadcast June 25, 2011), available at http://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts. 2 PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 27 (2008) (describing the roots of the friction between the openness of learned law to extralegal sources and the constrained traditions of common law judging); see also Gerald J. Postema, Classical Common Law Jurisprudence (Part I), 2 OXFORD U. COMMONWEALTH L.J. 155, 157 (2002) (“Classical common law jurisprudence was articulated by reflective but politically enga (...truncated)