The author outside the Supreme Court (c. January 2009)
This month Texas Monthly published an interview with retiring Texas criminal court judge Cathy Cochran, and in it she discusses the top judiciary reforms of the last twenty years. These include the increased use of DNA evidence, compensation for the wrongfully incarcerated, and policies to curtail false eyewitness identifications. All of these are surprisingly progressive reforms in a state that (often deserved) is criticized for its conservatism.
Yet, legal reforms aside, something in the interview stood out. When Cochran was asked how important a judge’s writing abilities are, Cochran answered:
Oh, very important—if you want to motivate people, if you want to make people pay attention, if you want people to do something, you need to say it well. A good politician rouses the crowd with language that people can understand and appreciate. If you want to be a good writer, you need to read good writers. I love reading Churchill, love reading Shakespeare. You need to make simple analogies that make sense to people who aren’t lawyers. When I started, I had my twelve-year-old grandson read some of my opinions.
Although it’s unlikely many laypeople ever read court opinions, we don’t appreciate their literary value (and even when it involves the Supreme Court, many only read excerpts). Contrary to the John Roberts school that supposes a judge is merely an “umpire” calling what they see, the judiciary is a political entity and its opinions are meant as much to inspire as they are to clarify the law of the land. Lines from Brown v. Board of Education (1954) are carved in marble. Justice Stewart’s “I know it when I see it” has become a pithy punchline. Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014) is a rallying cry for gender equality advocates. Now when was the last time someone quoted a bill?
Yet, increasingly, fewer judges are writing their own court opinions. Instead, they rely upon law clerks to write the first draft, which is then edited. The consequence of this is that, according to legal scholar William Domnarski writing in The New York Times,
[M]uch of importance is lost …. Judge-written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions. …
It is no coincidence that Judge [Richard A.] Posner, the most influential (and most widely cited) appellate judge of his generation, writes his own opinions. His judicial voice is marked with stylistic touches, to be sure, shunning (and even lampooning) legalese as well as disregarding the traditional five-part structure on which law clerks typically rely. But what most grabs the reader is the voice of a judge thoroughly engaged with a problem in the law and working through it with enthusiasm, almost joy. As Judge Posner himself has written, “I know that only a few of the readers of my opinions are not lawyers, but the exercise of trying to write judicial opinions in a way that makes them accessible to intelligent lay persons contributes to keeping the law in tune with human and social needs and understandings and avoiding the legal professional’s natural tendency to mandarin obscurity and preciosity.”
Domnarski then adds that in addition to his political and social value, writing is a necessary part of the legal process. It is imperative for understanding the fine details of a case.
Unlike lawyers who are paid to argue for just one side in a case, judges are paid to pursue the truth. The bench is free from the limitations of advocacy; judges get to test arguments and follow a line of reasoning wherever it might take them. They get to explore the law. The opinion, properly done, reveals the judge sorting through the problem, thinking on the page. For similar reasons, judge-written opinions are also less vulnerable to a judge’s reflexive political and ideological leanings. The act of writing brings judges closer to the specific details and relevant issues of a case, forcing them to reckon with the case at hand in all its particulars, rather than seeing it as an instance of some more general theory or problem. [Emphasis mine].
Being able to fully engage with an idea and then clearly articulate one’s conclusions is a fundamental part of the democratic process. When the writing’s bad or judge’s skip out on their duty, everyone loses. So kudos to both Judges Cochran and Posner for recognizing this.