Over at the Chicago Law Faculty Blog, Brian Leiter has a post discussing Judge Richard Posner’s legal pragmatism. He writes:
First: Do judges actually have any obligation or duty to abide by precedents or statutes or constitutions on the pragmatic view? Or do they only have some instrumental reasons to pay some attention to these materials? The pragmatist judge, according to Posner, is “unchecked by any felt duty to secure consistency oin principle” with past official actions, i.e., court decisions and legislative enactments (241). The pragmatist judge, he says, only decides “in accordance with precedent” when that is “the best method for producing the best results for the future.” (241). Judge Posner adds that the pragmatist judge is not “uninterested” in statutes and precedents, but that is because he “regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them” (242). Indeed, he refers to these sources of law as “‘authorities'” (in quotation marks) and as “merely…sources of information and as limited constraints on [the judge’s] freedom of decision.” None of this makes it sound as though there is any serious obligation for the pragmatist to abide by precedent or statute.
The pragmatic theory of precedent is actually much stronger than the above characterization. There can be strong instrumental reasons for rigidly adhering to precedent. First, establishing a firm tradition of adherence to precedent promotes consistency and serves as a limit on judicial power. Second, disrespect for precedent might undermine the political capital of the judiciary and may lead to a backlash by other branches or the public, thus undermining the judiciary’s power in the future. Third, departing from precedent gradually undermines the function of adherence to precedent, which helps establish the legitimacy of judicial decisions. Undermining this source of legitimacy renders impotent one of the primary sources of judicial power.
True, under a pragmatic theory, judges have instrumental reasons for adhering to precedent but don’t have an “obligation” to do so. These instrumental reasons may sound less absolutist than a more categorical command to obey precedent, but these reasons can be just as potent and powerful in practice.
Indeed, it is not at all clear that non-pragmatist judges are more likely to respect precedent. Non-pragmatist judges who proclaim their strict duty to precedent can readily cheat and pretend to follow precedent while cleverly manipulating it to get the results they want. A non-pragmatist judge may adopt a rather loose or creative interpretive stance toward prior caselaw or statutes, allowing her to claim adherence to precedent while at the same time taking the law in a new direction. The non-pragmatist judge will claim that this new direction is consistent with prior cases based on interpretive reasons. In contrast, the pragmatist judge might more openly acknowledge the departure from precedent and justify it with instrumental reasons for the departure. But the fact that the pragmatist judge might describe the departure in a different manner does not mean that the pragmatist judge is more likely to depart from precedent. In fact, if a pragmatist judge is committed to honestly acknowledging departures from precedent, then this could make the judge more reluctant to depart than the non-pragmatist judge who believes she can cloak her departures with skillful rhetoric.
In other words, I don’t see why pragmatist judges are likely to be less respectful of precedent or more likely to depart from it than non-pragmatist judges.
There’s also a podcast of Leiter’s discussion with Posner, which I haven’t had the opportunity to listen to.