Judicial writing and the ethics of the judicial office

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

opinion to sway an election?34 Does it matter if the opinion only points out the significance of a legal-political issue when a campaign is under way?

This Article takes up these questions and, drawing on George Orwell and Lon Fuller, suggests that some rules for the writing of judicial opinions be added to the Code of Conduct for United States Judges. In the course of this analysis I consider objections to the rules I propose, but I will start by considering an objection to the enterprise itself and use the objection to explain how Orwell is relevant to judicial opinion-writing. The objection is that how a judge writes an opinion is a personal matter of style or taste and not a question that goes to the heart of "judging." A proponent of this view might say that coming to a case with a disinterested mind and an open ear is what is important; it is the decision that matters and not the writing of the opinion. This argument implies that writing and deciding are separate acts, and that we can without inconsistency or incoherence have rules aimed at the process of deciding but not at opinion-writing. Under this view, rules about opinion-writing would seem unnecessary and perhaps a nuisance.35

famous criterion, enhance the moral force of adjudication as a form of social ordering.37

Orwell is relevant here because his essays and journalism insist that writing and thinking are connected and because he provides an excellent example of a biased writer honestly fighting his biases. Orwell insisted that ill-formed or dishonest thoughts produce bad writing - opaque and directionless prose weighted down with abstractions, jargon, and cant - and that bad writing and bad thinking reinforce one another. The bad writing allows the writer to ignore how senseless or corrupt his thoughts are, those sorts of thoughts lend themselves to writing designed to obscure what (if anything) an author means, and so on.

Orwell also held striking political convictions and an array of fierce biases. Unlike many authors, he was aware of both. By nature and because of experience, Orwell valued truth, intellectual honesty, and candor in writing. He therefore tried to establish and follow high standards of intellectual and verbal candor, fairness to his subject, respect for the incompleteness of his perspective, and awareness of his motive and aim. Orwell's essays and nonfiction give us a fascinating study of a man fighting to discover his biases, to confront them honestly, and to eliminate as far as possible the effect they might have on his consideration of the matter at hand. Orwell did not always succeed but, because he made a determined effort, and because in writing he said what he meant without fear, his failures are apparent and are as instructive as his successes.

My main points for the law are these: An ethical judge must demand of herself that she identify and understand her own biases and how they affect her reaction to a case. Writing opinions has an important role in this effort. Judicial opinions both resolve disputes between litigants and use the litigants and their dispute to develop the law. Judges may use litigants in this manner, but only to develop the law and with an eye in particular on persons in situations similar to that of the parties. Judges may not write opinions using the parties or a case in other ways. The rules I propose are these: