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.He makes it clear that his first question is not whether the law permits or forbids something, but whether the result of the action is good in some sense. Whether it's legal comes after an evaluation of the merits. Doesn't that pretty much define judicial activism? Seeking first to implement policy from the bench, and only then deciding on the law?
This is not to say I necessarily disagree with the approach. I'd say a judge should weigh the benefits of a policy, especially as a tie-breaker, but surely that isn't the first question. That question is properly within the scope of the legislature that passed a law and an executive process which implemented it. We can assume that those bodies decided that the policy is good, and one must ask whether a judge is responsible for bringing his own assessment of policy to the table, or simply for considering the way that a policy as implemented achieves the goals laid out by the legislature, and whether those goals can be squared with the Constitution.
The latter is what we saw in the Kansas education decision. The Constitution requires adequate funding for a suitable education. The legislature had an estimate of what that would cost, and spent far less. A judge didn't step in and say "I think there should be more money because I'd have voted for a bigger funding package," he held that the legislature's actions failed to live up to the strictures of the Constitution. The judge may be fiscally conservative and secretly wish the Constitution didn't guarantee adequate funding, but he was constrained first by the law, and second by his policy preferences.
Posner is considered a conservative jurist, among the pre-eminent conservative legal theorists. Am I crazy or is he advocating what conservatives always whine about?