65 Pages Posted: 23 Feb 2014 Last revised: 10 Sep 2014
Date Written: February 21, 2014
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 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.
Keywords: constitutional law, constitutional theory, judicial role, Richard Posner, J. Harvie Wilkinson III, judicial excellence, Establishment Clause, Second Amendment, partial-birth abortion, Henry Friendly
Suggested Citation: Suggested Citation
DeGirolami, Marc O. and Walsh, Kevin C., Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (February 21, 2014). Notre Dame Law Review, Vol. 90, No. 2, 2015; St. John's Legal Studies Research Paper No. 14-004. Available at SSRN: https://ssrn.com/abstract=2399487 or http://dx.doi.org/10.2139/ssrn.2399487
By Jack Balkin