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Tuesday, June 10, 2014

First-Person Judicial Opinions

Something that jumped out at me in reading Judge Barbara Crabb’s recent opinion striking down Wisconsin’s ban on same-sex marriage is that she wrote in the first-person.  Here, for example, are Judge Crabb’s concluding sentences:

Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.

Although a Westlaw search reveals that use of the first-person is not uncommon amongst district judges (the phrases “I hold” or “I conclude” appear in at least 10,000 opinions in the DCT database), the practice is hardly universal.  Some judges feel that references to “the court” are too formal, and that they obscure the identity of the decision maker.  The other side is well-represented by Joyce George’s Judicial Opinion Writing Handbook: “By personalizing the writing, the author takes the position of pitting his rationale against that of the losing party. The judge becomes a substitute for the prevailing party in appearance and in his role.”  And perhaps provides fodder for those inclined to rail against the activism of unelected judges.

My instinct is to be untroubled by the first-person, and to suspect that it provides at least a modicum of extra ownership.  But I’d be interested in your thoughts.

Posted by Chad Oldfather on June 10, 2014 at 05:43 PM | Permalink


"By personalizing the writing, the author takes the position of pitting his rationale against that of the losing party. The judge becomes a substitute for the prevailing party in appearance and in his role."

I find this argument rather puzzling. When a judge rules against a party, I should hope he pits his rationale against that of the losing party. That's the point of ruling: Judges have to pick a side. And I don't know what it means to "become a substitute for the prevailing party." If A sues B and the judge rules for B, the judge doesn't become B. He is just the judge that found B's argument stronger than A's argument. Again, that would seem to be the point of judging.

Posted by: Orin Kerr | Jun 10, 2014 5:51:46 PM

I take George's point to be something along the lines of preferring a presentation in which the judge says "you lose because the law says so" over one that might be perceived as "you lose because I say so." It's a distinction that might be meaningful to those for whom the legal system is an unfamiliar environment.

Posted by: Chad Oldfather | Jun 10, 2014 6:19:23 PM

My judge wrote in the first person. He didn't think highly of judges who referred to themselves as "the Court" or "the undersigned."

Posted by: Former USDC clerk | Jun 10, 2014 7:11:04 PM

This isn't very remarkable (as you seem, ultimately, to say). I prefer "I", but it does tend to personalize things. It is also interesting as a matter of judicial culture. On collegial bodies, "I" is largely reserved for concurrences or dissents. District courts are also much more independent of one another's prior decisions, even within the same district. So perhaps some prefer references to "the court" and so forth as a way of exhibiting greater unity of mind and purpose.

Posted by: Ed | Jun 10, 2014 8:11:36 PM

I just hope we can agree that first person *plural* is douchey.

Posted by: anon | Jun 10, 2014 9:20:23 PM

When the judge authors a majority opinion, she writes in her official rather than personal capacity. Hence reserving "I" is better, as a matter of style and practice, for dissents. As for having the judge pit her personal opinions against those of the parties: I think Rawlsians at the least would be appalled. They would argue that what matters is the judge's public, rather than private, reasons. Furthermore, what the law says often flatly contradicts a judge's personal opinions, and the role of personal opinion in the law is a complex issue (see, e.g., formalism versus realism; or Ronald Dworkin's nuanced but controversial position, and so on and so forth). John Gardner has some interesting things to say about the tone of judicial opinions, and why some ways of inserting the judicial personality, especially in ways that undermine the seriousness of the enterprise, are morally worrisome.

Posted by: Eric Miller | Jun 11, 2014 2:33:07 PM

I am against the use of "I". As Chad suggested the law is supposed to compel the result, not the judge. I similarly agree with CJ Roberts that judicial robes are appropriate to emphasize that there is something going on besides the application of personal predilections to the controversy.

However, where the judge acts as the role of fact-finder, I am not terribly bothered by the use of the first-person.

Posted by: andy | Jun 12, 2014 2:36:07 AM

Interestingly enough I think the "I" and "we" were more common in the 19th century and early 20th century. I haven't done a systematic study of this but I noticed it awhile back and thought it would be an interesting question to do a more systematic look at. I know at the time I first noticed this I wondered if the increasing politicization and polarizing of the judiciary into conservative and liberal camps have engendered this retreat to the third person and to try to reinforce the notion that it is the impersonal law which compels this result, not that the judge disagrees with your arguments.

Posted by: Tamara Piety | Jun 12, 2014 12:17:08 PM

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