Judges Should Write Their Own Opinions

by William Domnarski

New York Times
May 31, 2012

There is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.

With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure.

There are, of course, understandable reasons for this arrangement. For one thing, it’s efficient: it helps judges manage the ever increasing flow of cases to be decided. It’s also familiar: it resembles the modern law-firm model (known to many judges from earlier stages in their careers) in which associates draft documents and senior partners edit them. Furthermore, the law is not a literary pursuit but a system of rules, principles and arguments: in a legal opinion the fine points of language can seem less important than the underlying logic of the decision.

But in truth, much of importance is lost when judges outsource the writing of their opinions to their less experienced assistants. Judge-written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions.

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