Los Angeles
Marc Riboud, 1959
For love of the game
At a fundamental level, a judge is best understood as a consumer of content, or possibly a gamer.
At least, that was what Judge Richard Posner concluded in What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1 (1993).
Despite the title, Posner's essay underlines just how unusual federal judges are. The Constitution and federal law does not make it easy for judges to do “The Same Thing[s] Everybody Else Does.”
In the United States, federal judicial office eliminates most ordinary human incentives. Judges are almost never fired, almost never promoted, and almost never hired out. They can’t get a pay cut, can’t get bonuses or incentives, and can’t take much outside work.
At a personal level, judges can’t choose what cases they hear, who they work with, or, once they’ve taken their commission, where they work. Once they’re commissioned, they're there for life.
Federal judges have a comfortable salary, especially in more affordable parts of the country. (The same salary goes a lot further in West Virginia than it does in the Northern District of California.) But money isn’t the main incentive.
So why do they do it? Well, status, mainly.
Judges take the job for the general esteem and the personal deference it commands. Those are unusual goods in a republican society. Beyond the language—the robes, the chambers, the “marble palace,” all very High Church—judges possess inherent powers to command, sanction, and detain those before them. With that kind of power, deference comes naturally.
Here’s the problem: No matter what they do, judges get the same amount of deference. Good judges get deference. Bad judges get deference. Hard-working judges, lazy judges, kind judges, cruel judges. They all get it.
It’s not just deference, either. It’s the same for esteem, respect, status. No matter how much or how little work you put in, the social returns stay the same. In fact, Posner suggests, the returns might be worse for the hard workers:
“Employers like a Stakhanovite,” Posner says, “fellow employees do not.” But given that federal judges have no “employer” in the ordinary sense of the word—no one to fire them, promote them, dock their pay, or give them a bonus—I read Posner as saying “Nobody likes the Stakhanovite judge.”
That makes judicial behavior something of a puzzle. Why work at all? Why do more than the bare minimum? No one’s forcing them. No material or social incentive is asking them to do more. Why do they do it?
The answer must be something internal, intrinsic to the work itself. But the cynical answers—the ones that cast judges as simple ideologues or partisans—even if true, can’t account for most judicial behavior, most of the time.
Judges, it’s true, enjoy voting. Their votes give them much more utility than ours give us, because they’re more likely to be pivotal. If you’re part of a nine-person electorate, and voting in a hundred elections each year, you have a pretty good chance of casting a deciding vote at least once or twice.
But voting isn’t much of what judges do. They have to read, listen, speak, and write. Those take up most of their time. Why not just vote? Why read? Why listen? Why speak? Why write? Just take the vote. Enter the judgment. It’d be much easier that way.
Why do they do it? Why do judges choose to judge and do the other things? Because it is easy? Posner certainly doesn’t think it’s because it’s hard.
Posner gives us a striking answer, but the only one that makes sense. Why judge? You may as well ask: why would someone climb the highest mountain? Why cross the Atlantic? Why does Rice play Texas? Simple: For the love of the game.
Importantly, the judge is as much the fan as the player in the contest. They vote, sure. For the most part, the judge simply consumes. They sit, read, and listen. They pay attention to each case not because they’re the player, but because they’re the fan.
Posner describes the judge as like the spectator at a show. Why pay attention to a show? Because you want to know what happens. Because you’ll miss something if you don’t. You need to watch to get the answers: Who did it? Who was right? What happened? What does it all mean?
In voting and writing, the judge becomes the player. But the judge is often enough simply the critic. Who did it? Who was right? What happened? What does it all mean? They write it up.
In writing it up, the judges apply the rules of the game to the players. (You can still use the language of culture here, as Posner does, but the rule-constituted nature of games and law makes it natural to shift to the language of games here.) The rules constrain them even as they give their opinions form and substance.
The judges are fans of the game. They have a fan’s knowledge of its rules. Like the spectator at the game, the judge calls balls and strikes, sometimes differently than the umpire on the field, or the instant-replay camera. Who are they going to trust? Those guys, or their own lying eyes?
At the decisional level, judges can see the previous moves in the game, know they will have to take their own. Judges have some leeway with their moves, as with the calling of balls and strikes. But they also know that the rules constitute the game: No rules, no game.
Rules exert their own internal discipline on judges. You might cheat at chess, but would you knowingly misstate its rules? Would you do either if you couldn’t get yourself any material advantage by it?
Judges are fans of the game. The only utility they control comes from watching the game and playing the game. By design, it’s hard to get them to act against the rules of the game.
It’s why they do it, after all. For love of the game.
* * *
Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 23–30 (1993):
Anonymous asked:
stop speaking over women when they talk about issues with sexual assault. you're exactly like the types of misogynists that say "bUt wHaT aBoUt MeN's IsSuEs??" whenever a woman mentions feminism
I’m not sure what I did to prompt this ask
Being ephemeral scares me because it dulls my feelings and makes me wander in madness. Art by AnastasiaTrusova linktree
Orange County Courthouse (1969) in Santa Ana, CA, USA, by Richard Neutra with Ramberg and Lowrey. Photo by Julius Shulman.
Source: rosettaapp.getty.edu
