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Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN.

Constitutional interpretation debates generally do not focus on legal pragmatism. They often match originalism against living constitutionalism. Several U.S. Supreme Court justices, such as Justice Scalia and Justice Thomas, have openly embraced originalism. Others, such as Justice Sonia Sotomayor, see the Constitution as an evolving document, sharing views similar to former Justice William Brennan (and perhaps to Ronald Dworkin’s moralism). Alternatively, several scholars, such as Thayer and Vermeule, argue that only “clearly” unconstitutional laws should be invalidated. In addition, “popular constitutionalists” such as Larry Kramer urge the Supreme Court to be restrained and allow constitutional interpretation and change, if any, to arise from the grass roots. But pragmatism is another important method of constitutional interpretation. Justice Stephen Breyer is the Court’s most prominent pragmatist. Pragmatism, however, is often criticized as an empty anti-theory.

Yet, Professors Michael Sullivan and Daniel Solove have provided a great service by authoring an essay which shows that judicial pragmatism is not theoretically rudderless—it has normative components. Sullivan also authored a valuable book about legal pragmatism. Though their essay addresses questions of legal philosophy, it has enormous significance for constitutional law as will be shown. Indeed, pragmatism may better describe the reality of the U.S. Supreme Court’s constitutional interpretive approach than the sophisticated theories mentioned above, as the Court’s hardest cases are often decided by policy and practical considerations. These considerations trump because the tough cases usually involve an ambiguous text and history, as well as conflicting judicial precedents. Sullivan and Solove accomplish their task by relying on the philosophical pragmatism of John Dewey, and other arguments, to question various components of prominent Judge Richard Posner’s legal pragmatism. They critique Judge Posner’s supposed value neutral consequentialism, his view of the democratic process, his conception of philosophizing, and what they see as Posner’s status quo conservatism on many issues. Sullivan and Solove advocate a more critical approach towards the status quo’s views of constitutional principles such as equality, liberty, justice, and the democracy that results. In short, Sullivan and Solove embrace a thicker notion of the good and of democracy than Judge Posner.

Now Judge Posner and John Dewey both distrust the kinds of abstract theories emanating from academic philosophy departments. But, Sullivan and Solove argue that one characteristic of Posner’s pragmatism, among many, is a skepticism about legal precedent. Instead, Posner argues that judges should make the best possible decision, taking into account “the consequences of doing so for now and the future.” (P. 3, citing Richard A. Posner, Law, Pragmatism, and Democracy 6 (2003).)

Sullivan and Solove then write that:

Posner’s insistence that the past has no claim on us is especially problematic, especially in our constitutional democracy. It conjures up images of the judge arriving on a scene armed with a storehouse of “facts” from the past, and then rendering her choice in light of whatever ends she has in mind. The origins of these ends, apparently doesn’t need to be accounted for. (P. 3.)

Sullivan and Solove elaborate that:

Because it rejects any way to discuss the selection of ends, Posnerian pragmatism has little choice but to accept uncritically the dominant ends of society. This result is rather ironic considering Posner’s claim that pragmatism has no political valence. Since Posner’s pragmatism lacks the tools to engage in more radical social reform, it becomes a rather conservative philosophy in the Burkean sense. It ends up inhibiting the kind of philosophical inquiries necessary to question the status quo. Therefore the effects of Posnerian pragmatism are anything but neutral. (P. 7.)

By contrast, Sullivan and Solove argue that Dewey sees pragmatists as free to engage in philosophizing outside the academic realm, especially of a more experiential critique oriented type. Sullivan and Solove write that:

In contrast to Posner’s account, Deweyan pragmatism provides for a more fruitful inquiry into our selection of ends. Under this account of pragmatism, philosophy plays an essential role.Dewey sees philosophy as critical inquiry, which aims to unsettle status quo assumptions and thus provide guidance for projects of social reconstruction. (P. 7.)

Dewey says that this critical and experiential approach allows us to avoid acting merely out of habit or by default. Dewey also advocates a deliberative model of democracy in which dialogue is prevalent between citizens. It can also be present between institutions (such as the U.S. Supreme Court and the U.S. Congress—dialogical theories of constitutional interpretation have recently become popular). Dewey argues that pragmatism should lead us to question existing notions of justice, fairness, and freedom. Sullivan and Solove assert that these questions and responses form a community of “who we are as a People.” (P. 9.) By contrast, Judge Posner’s value neutrality insulates “dominant social structures from criticism.” (P. 10.) Moreover, Sullivan and Solove question whether Posner’s notion of politics (which doubts the presence or value of deliberation and sees dominance by elites) is actually pragmatic for a democracy.

The significance of these different views on pragmatism for constitutional law and politics is great. Though both Dewey and Posner disdain “politics informed by supernatural or transcendental ideals”, (P. 13), as previously suggested, “Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo.” (P. 14.) To give one example with constitutional implications, Dewey sees political participation as “a highly valued end” itself (part of Dewey’s thicker notion of the good) whereas Posner only sees it as worthy if it has positive consequences. (P. 14.)

Here are some other examples of how these different views of pragmatism play out in constitutional interpretation. Judge Posner has authored several works suggesting that civil liberties will usually be restricted during wartime, and that this is not troublesome or surprising, even if torture sometimes occurs. See e.g., Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency 81-84 (2006). This is just reality. Yet he would be wrong to not be troubled by recent revelations in the U.S. Senate Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (the “torture report”) during the “war on terror.” It’s hard to imagine Dewey would not be troubled by learning about dehumanizing acts of rectal rehydration or mock executions. Moreover, the report suggests the torture was not effective.

Judge Posner has also recently expressed skepticism about the value of privacy in our more technological society since privacy will inevitably be tough to protect, and because those who have nothing to hide should have little to fear from intrusions. Ronald K. Collins, On Privacy, Free Speech & Related Matters, Concurring Opinions (Dec. 15, 2014) (part of a series of interviews with Judge Posner and other references to Posner’s work). But this is the kind of faith in the status quo that Sullivan and Solove are concerned about, that Posner’s approach tolerates unlike Dewey’s.

My one major caveat is that Sullivan and Solove underestimate how Posner’s pragmatism might open him to change views over time as society changes and as he learns more about an issue. This is an admirable and rare quality among jurists and scholars. Judge Posner confided at the 2015 AALS Annual Meeting, in a debate with Professor Stanley Fish, that Posner had altered his views on certain issues. His reign as the king of law and economics is well known, but those are not the robes that he wears now. For example, he recently authored a powerful judicial opinion ruling that states cannot ban same sex marriage—a view he did not hold years ago. Jonathan Friedman, A Conservative Judge Did a Stunning About Face on Gay Marriage, Business Insider (Sep. 8, 2014).

Indeed, one could go further and assert that Judge Posner’s opinion in Baskin, et. al. v. Bogan, 766 F.3d 648 (7th Cir. 2014), resembles Sullivan and Solove’s critical pragmatism. Judge Posner dismantles Wisconsin’s argument in favor of maintaining the marriage status quo by citing Loving v. Virginia, 388 U.S. 1 (1967). Posner also notes that there are “good traditions” and “bad traditions pilloried in stories such as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery.’” This part of his opinion attacks lazy status quo arguments.

Moreover, as the good pragmatist, he relies on the latest social science and scientific data related to the origins of being gay, the impact on children, and other relevant matters. Further, he undermines traditional equal protection doctrine in favor of a more pragmatic “cost/benefits” analysis. In addition, he rejects the state arguments by offering insightful counter analogies and by pointing out oversights (e.g., Indiana “ignored adoption” by gay people which it already permitted, while trying to argue that gay parents were harmful). Most interestingly, one could argue that Judge Posner’s reasoning has a moral component when he discusses the “pain” felt by gay parents who cannot marry, and the insecure situation in which that places their children. William James would agree that pragmatism is not amoral. Above all, Judge Posner’s opinion reveals the power of modern empirical and practical reasoning to critique feeble excuses for keeping same sex couples as second class citizens.

Now one can respond that Judge Posner is just mirroring the changing views of society on the same sex marriage issue and therefore reflecting the status quo. But Judge Posner’s critique seems stronger than that. Regardless, the Sullivan and Solove essay sheds light on the meaning of legal pragmatism in important ways for constitutional law.

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Cite as: Mark Kende, Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation, JOTWELL (February 24, 2015) (reviewing Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN),