Judicial writing and the ethics of the judicial office

INTRODUCTION

We expect a lot from judges, and our most important expectations are at odds with one another. We expect judges to feel passion for the law. This means in part that we expect judges to feel that the law and their interpretation of it matters to the lives of the litigants and to society. Judges should not see the law or litigants as a game or a puzzle set up for their amusement. We expect judges to judge in a disinterested manner. They should keep personal biases and prejudices out of their judging. They should not care whether the plaintiff or defendant wins simply because of who the plaintiff or defendant happens to be, or simply because the plaintiff is a plaintiff and the defendant a defendant. This is one thing judges vow to do when they take an oath or affirm that they will judge fairly and impartially, "without respect to persons."1

But passion usually springs from interest, and it is an odd thing to ask that judges bring the one but not the other to their jobs. Partly for this reason, observers of the modern judicial scene take interest for granted. At least on hot-button issues of broad political interest, most observers speak by reflex of "liberal" and "conservative" judges, confidently count judicial noses by the Presidents who appointed the judges, and are surprised when a judge diverges from the orthodoxy this presidential determinism predicts. Divergence in one's favor is called growth; divergence toward opposing views is called corruption by the media or some such thing. On the hot-button issues we expect interest to spur passion, and for the passion to dominate the parties to the case, the decision of their dispute, and even the manner of deciding. We consider the notion of strong disinterestedness to be naive, exposed as such at least by the Realists, hammered home by the Crits, and perhaps never taken seriously before then anyway.

interest. Taken together, these rules set out the values we wish the judicial office to uphold. They say what we want judges to be and to do. We have many such rules and they are surprisingly detailed. For federal judges there is a rule establishing precedence among justices of the Supreme Court.2 There is a rule stating who shall be chief judge of a circuit and how long that judge may remain chief.3 There is a rule that judges may not hear appeals from their own decisions.4 There are rules requiring the Chief Justice of the United States and the chief judges of the circuits to meet annually as the Judicial Conference of the United States, and a similar rule requiring chief judges of circuits and the judges within the circuit to meet in judicial council.5 There is a rule that all circuit judges except those of the D.C. Circuit must live in the territory their circuit covers.6 There are rules limiting how much money judges can earn on the side,7 and one forbidding them from practicing law.8 There is a rule requiring judges to give their government law books to their successors.9 There is a rule providing procedures to remove judges from cases as to which they are biased or prejudiced."10 And there is a rule allowing judges to be disciplined for engaging in conduct harmful to "the effective and expeditious administration of the business of the courts."11

avoid impropriety and its appearance, and should "freely and willingly" accept steps necessary to avoid either.13 A judge may not be a member of an organization that discriminates in a harmful way because of race, sex, religion, or national origin.14 A judge may not be swayed by partisan concerns or public clamor, and must require order and decorum in proceedings before her.15 A judge must "be patient, dignified, and courteous" to persons the judge encounters in an official capacity, and must require others to act this way as well.16 A judge may not criticize or praise jurors for a verdict unless the criticism or praise is in an opinion or order. A judge may, however, "express appreciation to jurors for their service to the judicial system and the community."17 A judge may not act as a fiduciary except for family members, and then only if the fiduciary role will not interfere with the judicial one."18 A judge must be diligent in judging and dispose of all matters promptly and efficiently.19

version of Grand Theory."23 Some think opinions should be written, at least in part, as social dialogue; they criticize courts (or at least the Supreme Court) for writing opinions that are not.24 Some advocate literary judging25 while others see opinions as closer to rules.26 Robert Cover wrote that "judges deal in pain and death,"27 and do so through their words, which serve as "a mandate for the deeds of others."28 Cover was right in this respect: A very large number of those who read legal opinions - here we include practicing lawyers and clients - view opinions as orders that have to be obeyed or as inputs to the legal services they sell. For these readers, opinions are like Henry Adams's description of Theodore Roosevelt: pure act.29