Judicial writing and the ethics of the judicial office

Georgetown Journal of Legal Ethics, The, Winter 2001 by McGowan, David

To place these points in context, let us consider two of legal realism's more notorious statements, written by Jerome Frank. First, that "law is made up not of rules for decision laid down by the courts but of the decisions themselves."'9 Second, that because the law is "something more than the rules and principles," it follows that "the personality of the judge is the pivotal factor."110 Taken to the end of its logic, this view implies that " `judicial discretion is sometimes very much interfered with by prejudice, which may be swayed and controlled by the merest trifles such as the toothache, the rheumatism, the gout, or a fit of indigestion.'"111 This is Frank quoting from an opinion that obviously exaggerates to make a point; Frank calls it "amusing" but he believes the author was "close to the truth."112 Justice Cardozo made a similar point more modestly when he said that while judges try to see cases clearly they can never see them with any eyes but their own.113

Professor Llewellyn said it is in part because the judicial office acts as "a subduer of self and self-will, as an engine to promote openness to listen and to understand, to quicken evenhandedness, patience, sustained effort to see and judge for All-of-Us."115 With typical flair, Llewellyn offered this view of the office:

The judge also, to the degree of our ability to train him, responds to robe, bench, and gavel in the manner of Pavlov's poodle. We set before him a performance to achieve and an ideal (for him to acquire) of how to achieve that performance .... With the judge, it is to spot the difference between being, thinking, and acting like Arthur Zilch, a man (or lawyer) in the street, and being, thinking, feeling, and acting like Zilch, J., a (a) responsible, (b) judicial, (c) officer. We give this Zilch a signal for when to "change" from the one to the other (as in a fairy tale): when he robes, he is to put on also the person of Zilch, J.116

For Llewellyn, the process was one in which the judge "by conditioning already done and by some degree of conditioned conscious exertion, sets himself to see and value - that is, to use his sense and reason - not as Arthur Zilch so much as in his capacity as judge and as a member of his specific court."117 Of his fourteen "Major Steadying Factors In Our Appellate Courts" that made appellate decisions tolerably certain, Professor Llewellyn thought the judicial office the most important. Pavlov's poodle is a bit much, but through rules and legal culture we do try to shape the judicial office so that its occupants will behave in a manner our society deems "judicial."118

We therefore begin by asking why judicial writing might be an important part of the judicial office. Orwell argued that writing and thinking are connected and cannot be pulled apart: muddled and insincere thoughts produce impenetrable and meaningless words. His essay Politics and the English Language makes the point:

language makes it easier for us to have foolish thoughts. The point is that it is reversible.119