Richard Posner says a judge in a hard case may properly "fall back on some strong moral or even religious feeling."

From an interview in the NYRB that you won't be able to access in full if you are not a subscriber:

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.

Via Christopher Shea in the Wall Street Journal, who characterizes Posner's approach as "an unspeakable opinion these days."

Unspeakable? Really? I hear it all the time... often from the same leftish professors who've made a point of loathing Posner. I've heard a lot of that loathing because my law school lies within the 7th Circuit, where Judge Posner sits... and where he will remain, because the place where his opinion really is unspeakable is (as Shea notes) before the Senate Judiciary Committee, if you want to get confirmed to a new judicial appointment.

And thus are we deprived of the very best minds, as Posner — about as good as we can get in a judge — bluntly points out:

One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.

ADDED: Here's the book the NYRB interview is based on: "How Judges Think." It's excellent. (But it's not available on Kindle, annoyingly.)

IN THE COMMENTS: Don M said:

I would prefer a court like this.

Scalia
Scalia
Roberts
Alito
Alito
Clarence Thomas
Clarence Thomas
Clarence Thomas
Clarence Thomas