Richard Posner is normally considered to be a conservative judge. Am I wrong, then, to be surprised by this?Judge Posner's approach can only be fully understood if one remembers that, under U.S. law, corporations have "personhood".The way I approach a case as a judge — maybe you think it heresy — is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.Don't get me wrong. As a casual, one-sentence summary of judicial philosophy, this strikes me as pretty reasonable. But is it a conservative philosophy? After all, Posner basically suggests that first he figures out what he wants to do and then he takes a look at the law to see if he can justify his personal preference — which makes it pretty obvious that his reading of the law is going to be heavily colored by his initial instinct about what decision he wants to hand down. I thought that was the kind of thing that us liberals were always being accused of doing?
Judge Posner's decisions are almost entirely consistent with the statement: "I approach a case as a judge by first asking myself 'what would a corporation view as a reasonable, sensible result', and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion."
The key is not to confuse Judge Posner's concern for "persons" with a concern for mere human beings.