Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory

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 papular 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 cuJSe 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 dijf erences 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 © 2014 Marc 0. DeGirolami and Kevin C. Walsh. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Associate Professor, St. John's University School of Law, and Associate Professor, University of Richmond School of Law, respectively. We thank Jeremy Blumenthal, Samuel Bray, Richard Fallon, James Gibson, Philip Hamburger, Scott Hemphill, Orin Kerr, Randy Kozel, Corinna Lain, Joseph Landau, Allison Orr Larsen, Julian Davis Mortenson, Jeffrey Pojanowski, Richard Posner, Jack Preis, Jeremy Sheff, Adam White, and Adam Zimmerman for helpful comments on earlier drafts. We also thank Tracy Hermann, Alec Kast and Leah Stiegler for indispensable assistance with research. This Article benefited from presentations at the BYU ICLARS Conference, the Fordham Law School Junior Faculty Forum, the St. John's Law School Faculty Workshop, and the Virginia Junior Faculty Forum. NOTRE DAME LAW REVIEW (VOL. 90:2 and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions-character traits that pertain to judicial excell.ence-that can and should be criticized on their own terms.