June 7, 2006

Stop the ghostwriting, let's go back to orality.

We were just talking about Supreme Court clerks here yesterday, and now there's a New Republic piece by Judge Posner, reviewing two new books on the subject:
Today's opinions are longer--a dubious virtue. There are more separate opinions, most of which are ephemeral. Today's opinions are more polished, more "scholarly," and more carefully cite-checked, but these are modest virtues. Neither judges nor their clerks are scholars. The scholarly apparatus of judicial opinions belongs to the rhetoric rather than the substance of judicial decision-making....

Although today's Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten. Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.
To say the least! Editing is not writing. You can try to make it look as though you've written something, but unless you've done the drafting, the ideas did not come out of your head. No touch-up job can compensate for the failure to do the real work of composing, of reading the cases and briefs and fitting the ideas together to see if the answers really lie where you intuitively believed. If someone else fits the pieces together for you, you haven't faced up to the lapses and disconnects. Someone has worked to fill in the gaps and make things look coherent.

Am I right to be so suspicious of the Supreme Court's work? It comes out of a black box, and as Posner says, the Court is preoccupied with confidentiality:
The Court's preoccupation with the confidentiality of its internal workings makes an illuminating contrast with the English judicial tradition (now in rapid decline because of caseload pressures) of "orality." Everything English judges did was to be done in public, so that their performance could be monitored. They did not deliberate, they had no staff, they did not have libraries, they did not read briefs: on the bench they read the cases, the statutes, and the other materials that the lawyers handed up to them. (So appeals might take days to argue, which is why the tradition has eroded.) Our Supreme Court (imitated in this by most other American courts) has gone to the opposite extreme, imposing--or attempting with mixed success to impose--a regime of secrecy on the judicial decision-making process.
So, what do you think? Would you like to see a return to the orality tradition? And, of course, it should all take place on television.


Dave said...

Doubtless someone will take me to task for uttering such a heretical opinion, but I would like to see people like Bill Gates and Warren Buffett on the court.

They have more expereience in their fingertip than Scalia or Alito have in their whole body.

Captain Ned said...

SCOTUS opinions could be banged out by the million monkeys trying to write Hamlet and I still would be against televising Federal court proceedings. Hell, I think that no court proceedings should be televised; the Lance Ito shuffle proves my case (IMNSHO).

Uncle Jimbo said...

Way way too much accountability involved Ann. There are far too few able to handle the intellectual rigor, and the requirement to admit that you are ruling to ensure the right outcome happens would stifle this for sure.

How do you invent gay marriage arguing in public?


Uncle J

Ann Althouse said...

So I'm counting that as a "yes," Uncle Jimbo.

Captain Ned: No jury will be involved. Only the most competent jurists handling legal arguments.

Dave: Have you ever seen Bill Gates perform an unscripted task on television? It does not inspire confidence.

Dave said...

"Have you ever seen Bill Gates perform an unscripted task on television? It does not inspire confidence."

Well, no I haven't but I'm not sure of the relevance.

Are you implying that a person should be a good extemporaneous speaker if he is on the Court?

Dave said...

I fully admit, by the way, that my idea--having people with real accomplishments, as opposed to windbag lawyers--sit on the Court is wholly unrealistic.

But, hey, I also once thought I'd play shortstop for the Yankees. I don't think Jeter's giving up his spot any time soon.

But a guy can dream.

Wickedpinto said...

I'm all about Orality.

OH! in the judiciary.

Well, does orality mean that you are able to actually DEFEND your positions in the same way that you authored your positions? Then definately.

and I also think that all of the "negotiations" of judicial majorities should be a part of the opinion. Commity, is a silly statement when you are arbiters, all negotiations should be a part of the public record.

The people should know about the back door deals that lead to controversial decisions, like Roe.

Simon said...

"Doubtless someone will take me to task for uttering such a heretical opinion, but I would like to see people like Bill Gates and Warren Buffett on the court. They have more expereience in their fingertip than Scalia or Alito have in their whole body."

By that logic, we should be demanding Judgeships for Jenna Jameson and Ginger Lynn. They, too, have more experience - in their given field - than the entire court. But you do rather have to wonder whether that experience - any more than Gates' or Buffet's - is actually relevant to the job of a judge.

JohnF said...

The problem here is the compulsion we have for opinions, with reasoning, rather than for results.

There is an old story of a lower court judge who didn't have much experience. He wrote all his opinions by just reciting the facts and then saying who won, based on those facts. He was always upheld on appeal because his results were just and it was easy for the appellate court to find a rationale to support the results.

Well, he became convinced that he was a very valuable member of the judiciary and that the world should profit from his reasoning, so he began to put rationales into his opinions. However, his lack of legal experience could not be hidden, and almost none of his decisions were affirmed as the appellate court eviscerated his reasoning over and over again.

There is a lesson here, which I vaguely remember my teacher Soia Mentschikoff talking about in her course on Legal Realism, namely, that it is the result, not the reasoning that is important.

The more the Justices reason things out, the more probable it is that the law of unintended consequences will grab hold of something in their opinions.

So: write less, fire clerks and do justice!

That was easy!

Simon said...

On point, I don't agree that thre should be more transparency in the way the court conducts its business. As much as I agree on the point of halving the present compliment of law clerks, and placing an opprobrium on having clerks drafting opinions, I think adopting the English method would be highly injurious to the quality of appellate judging.

There is this weird mania in America where people feel very strongly that they should know precisely what is going on at every level of government at every time. You have to ask yourself: has C-SPAN really helped improve Congress? Is Congress' output really better now than it was before, or is it worse? Is the nomination process smoother and more effectivenow,or is it worse? Is the tone of political discourse better now, or is it worse? I submit that it is worse. Why would you think opening the court to the same pressures would be anything but injurious?

C-SPAN is hugely interesting to watch, but like any genuinely addictive drug, it has perillous side effects for the user and for society. It is a failed experiment, and yet there are those who now demand more of the same -- presumably out of either selfishness, self-delusion or both.

Simon said...

"There is a lesson here, which I vaguely remember my teacher Soia Mentschikoff talking about in her course on Legal Realism, namely, that it is the result, not the reasoning that is important. The more the Justices reason things out, the more probable it is that the law of unintended consequences will grab hold of something in their opinions."

Well, yes, that is the kind of nonsense that one expects from legal realists -- a term too flattering by half for what we should probably call instrumentalists.

At the appellate level in general, and a fortiori at the Supreme Court level, the reasoning is far more important than the result. The modern Supreme Court does not take a case to do justice to the individual litigant, it takes cases to resolve legal questions in ways that can then be applied by lower courts. Moreover, I strongly dispute the premise that the law of unintended consequences is the right way to describe it. A judge who announces a bright-line rulie and the reasoning behind it is binding not only lower courts, but herself to generally follow that rule in the future. The kind of case-by-case minimalism that is so falsely touted as judicial modesty is, in fact, highly aggrandizing of the judge and their power; the former because it retains their place at the hub of legal questions, because litigants must come back again and again to seek the counsel of the wise oracle on even marginally different cases, and the latter because of thelack of restraint placed on the judge by previously-announced rules.

JohnF said...


Although my comments were a little whimsical, there is merit in the notion that courts ought to decide the issue between the litigants, without much consideration of "broader" consequences, which--call it what you will--are often unpredictable.

The idea of the common law is to see a just result for two litigants, and, in a later case, to reason by analogy from those precedents.

The civil law approach--which generally seeks to reason from rules rather than from analogy--is, I think, less likely to produce justice, and though it creates an illusion of "bright lines," in fact they are few and far between.

It was the great virtue of the common law that it could "learn" from experience, with courts deciding as little as possible each time. The evil of a great deal of Supreme Court jurisprudence is that some Justices feel the need to rule for the ages.

Of course, we see judges criticizing their colleagues all the time for deciding more than they have to, and this is a very serious criticism in my view. The Supremes regrettably are among the biggest offenders.

jeff_d said...


I think you are talking about two different things--whether a court ought to explain its reasoning and whether it ought to be careful about announcing a rule of law broader than the case requires. As to the former point, the very purpose of a court that exercises discretionary appellate review is to resolve and clarify uncertainty by announcing rules of law that may be relied upon in future cases. A Supreme Court that deliberately obscured its reasoning, as in the example you cited and as apparently urged by the Legal Realist professor, would be worse than useless. The product of such a court would create more confusion.

It is interesting (at least to me) to consider whether some of the O’Connor-Kennedy jurisprudence, which is so heavily reliant on unwieldy balancing schemes and factual minutiae, has created just this sort of problem—making the job of lower courts harder than if the cases hadn’t been decided by the Supreme Court at all.

Regarding your second point, I agree that the temptation to use opinions to enunciate grand theories or to effect sweeping social and political change is one that has too often been beyond many Justices' ability to resist. However, I don’t think this is so much a problem of being too zealous in trying to write persuasive opinions. Unfortunately, I think it is simply the raw arrogation of power. Still, you rightly point out the need to criticize this when it occurs.

JohnF said...


I agree with you. My original comments were, as I noted, somewhat whimsical. The point is for the court to do as little as possible to resolve the dispute--the hypothetical lower court jurist who never offered reasons was, shall we say, an extreme case!

Marghlar said...

On a practical level, I think such a rule would be likely to discourage thoughtful, introspective people from wanting to be on the SCOTUS, and would tend to draw those likely to grandstand. I doubt that such people make the best jurists.

Mpsfreedom said...

I've been an avid reader of this blog for a while now and am finally ready to take the plunge.

It's interesting to note that in the Legislative branch, it is fairly well accepted that legislators do not draft legislation. Legislation is drafted by staff (in most states and Congress), interest groups, or others within the legislative process. The legislators approve of drafts as capturing their intent, they introduce them into the process, they argue publicly, and they vote. No problem. No one is out there arguing for more legislative orality.

So, what's the big deal with Judges doing the same thing with regard to their opinions? I don't mind having clerks craft opinions, as long as the judges aren't asleep at the switch.

I also am not afraid of exposing the public to the internal debates of SCOTUS and the various state supremes. We should get to see judges argue for their positions. Why pretend that the law is out there and that the court finds it. That may be true sometimes, but if a case gets fully litigated it is usually because both sides have a point. The court is often just another governmental body, not unlike the Legislature, that has to hash out public policy, only the court does it within certain unique institutional and constitutional restraints. Remember, much of the court's work involves cleaning up ambiguities passed into law by the Legislature. It would be good government for them to publicly struggle to make sense of things.

Seven Machos said...

I tend to think that transparency is good, but transparency of process, not actual, hearing-everything transparency.

When people know that they will be heard, and what they will say will be recorded and permanently attached to them, they tend to be a lot more circumspect in what they say. Or they tend to grandstand and say things they don't really believe because they think it would be better to be recorded saying those things. They tend to be less willing to say things that may or may not have validity, to sort of throw things out there, the way you would in an off-the-record conversation.

There is a lot to be said for the private meeting, the smoke-filled room. Take your basic plea-bargain meeting. The judge is there. The attorneys are there. It's not recorded. And the principals at teh meeting can say things they wouldn't say in a recorded meeting. A judge can say, for example, "I got a big vacation planned for next month and my kids are playing softball every afternoon next week. I would agree to five years and ten years probation if your client pleads guilty, and if the prosecution agrees." Nothing wrong with saying that, but it would certainly LOOK bad to people who did not know that judge, and know that she is ethical.

Similarly, it would have been better if the House and Senate had had more latitude for private discussion during the ridiculous Monicagate "scandal."

Honest, give-and-take conversations cannot occur if everything is recorded.

Henry said...

I think there's editing and there's editing.

Thomas Wolfe's Look Homeward Angel was famously edited into coherence by Maxwell Perkins.

The justice's name goes on the opinion, so they need not adhere to anything their clerks give them. They can rewrite, cut and paste, change yeses to nos and it follows to it doesn't. An unconstrained editor can change the entire shape, thrust, and meaning of a work. Final draft is not a gloss on the original, it's an entirely different work.

I hope that's the process, anyway.

Richard Dolan said...

Since Posner turns out a book ever few months, in addition to endless articles and his back-and-forth with Becker, while still handling a full caseload on the 7th Circuit, he's very far from your typical judge in terms of his abilities. He's quite likely to have a unique, and not very representative, perspective about the judicial decisionmaking and opinion writing process.

What is surprising in this thread is the notion that someone other than the individual judge might know better than him how best to structure that judge's decisionmaking and decision issuing process. I strongly doubt that a "one size fits all" solution works any better in this context than in does in most others. The assumption that judicial decisionmaking would be improved if judges all wrote their own opinions, more of less from scratch, is just that -- an assumption. Perhaps for some judges, there would be an improvement. But don't discount the likelihood that for many others, the opposite would be the result.

It's odd to see concerns about judicial "authenticity" constantly working their way into this discussion about judges, clerks and the process of researching, drafting and issuing opinions. It's certainly true that wisdom and common sense tend to grow with age and experience. For that reason, we look for judges who have lived a little and experienced life; kids fresh out of school don't bring that to the process. But Ann's idea about the value added by a judge's working through the problem, reading the relevant cases, and then drafting the careful opinion resolving it all, reflects an idealized and romanticized image of "judge" that is far removed from reality. There are some who fit that model -- Posner is a good example, as is Judge Weinstein in the EDNY -- but they are very far from the norm. If improving the function of the judiciary is the goal, it's much better to start by accepting the more humble abilities that the typical judge brings to the job, and go on from there.

As for the virtues of "orality," they seem a bit overblown to me. There is no reason to think that having the judge do all the work of judging on the bench, in public view, would add anything to the quality of the final result. In some cases, however, a variant may well have a lot to recommend it. One gets closest to that kind of "orality" in the American tradition in the trial courts, where the judge has complete freedom to schedule oral arguments, and generally to structure the decisionmaking process, in whatever way works best for him. Some trial judges like to issue "preliminary decisions" in hard cases, and then have oral argument, so that the lawyers can punch whatever holes in the judge's reasoning or the result that they can.

But that is a procedure that works best only in truly hard cases. The simple truth is that most cases are of the cut-and-dried variety. The most significant impact of following such elaborate procedures in that class of cases would be inefficiency and delay. Delay in the processing of cases is one of the steepest transaction costs. Procedures likely to add to it without some clear offsetting benefit have nothing to recommend them. For the same reason, all those who think that there is great benefit in each judge's drafting his own opinions need to factor in the administrative fact that still more delay is a very likely result. Any litigator knows that one of the worst things about the judicial system is the long wait, often measured stretching for more than a year, in getting a decision on a motion or appeal.