Judicial writing and the ethics of the judicial office

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

1. Judges should speak candidly and speak first to the parties and their dispute.

2. Judges should write their own published opinions. They should not have law clerks or anyone else do the writing for them.

3. A published opinion should discuss the resolution of an actual dispute and try to use the dispute to develop the law in a way useful to society and in particular to those whose situation is similar to that of the parties. Opinions that do not should not be published.

These rules are designed to implement a party-centered model of judging, at least insofar as judicial writing is concerned. This model competes with the view that the most important job of a judge is to establish rules, state social values, and bring social practice into line with social values.38 The conflict between the two models is well known,39 but the role played by opinion-writing needs to be considered more than it has been.

One caveat before we begin. I do not suggest that Orwell's standards of writing simply be transferred intact to govern opinion writing. They could not and should not be: Orwell was an essayist, journalist, and novelist, and a polemicist in each role. For his attacks on Stalinist apologists and others operating on a similar level, Orwell developed a style of laconic brutality. It fit its period and purpose beautifully, but it cannot usefully be transplanted out of its context. The roles of essayist and judge are very different, as are the contexts in which essays and opinions are read. An ethical judge cannot be a polemicist.

This Article is prompted by an interesting written exchange in the review of a capital case by the Court of Appeals for the Ninth Circuit. By any standards other than those that seem to govern Ninth Circuit review of capital cases,40 the writings were extraordinary. I discuss the case in Part I of this Article, and Orwell's writings in Part II. Part III uses the first two Parts to discuss the rules I propose, and Part IV considers objections to those rules.

I. "DUE TO PROCEDURAL MISUNDERSTANDINGS WITHIN OUR COURT, NO EN BANC CALL WAS MADE"

federal district court. The district court found the performance of Thompson's trial lawyer constitutionally deficient and issued the writ on that ground.42

According to the district judge, Thompson's lawyer had not made a competent effort to rebut forensic evidence relating to the rape charge and had not competently questioned two jailhouse informants who testified against Thompson.43 Both informants were open to the charge that they were lying to secure favorable treatment from prison officials; one of the informants may have been a habitual liar.44 Thompson raised other arguments, including a claim that the prosecutors violated his rights by trying him and another defendant on inconsistent theories of the crime, but the district court rejected these.45

Both parties appealed to the Ninth Circuit, and Thompson lost. The Ninth Circuit panel did not decide whether Thompson's lawyer had been up to constitutional muster. The court instead held that even if the lawyer had done an inadequate job, his failings did not harm Thompson. Agreeing with the district court's rejection of Thompson's other arguments, the panel reinstated his conviction and death sentence.46 The panel judges were Beezer, Hall, and Leavy.