Tuesday, June 5, 2012

Should Judges Write Their Own Opinions?

In a recent New York Times Op-Ed, attorney William Domnarski excoriates the practice of having law clerks "ghostwrite" judges' legal opinions, calling it a "crisis in the federal judiciary."  Mr. Domnarski asserts that "ghostwritten" opinions are less intellectually rigorous and carry less imprint of a judge's personal style than opinions personally drafted by the judge, and that they encourage opinions that reach dishonest and opaque conclusions.

As a former law clerk to a federal appellate judge, as well as an attorney with experience working in law offices big and small, I view Mr. Domnarski's assertions as both wrong and unrealistic.  Indeed, as Mr. Domnarski acknowledges, judges who rely on clerks to prepare first drafts are only doing what attorneys at any large, private law firm do, and so what they themselves have likely done during the entire career that resulted in their promotion to the federal bench.  In support of his assertion that this somehow undermines the rigor of the opinion-writing process, Mr. Domnarski cites nothing other than his own impressionistic perception that the handful of "great" opinion-writers "go it alone."

There is a reason that law firms across the country have adopted a division of labor in which substantive pleadings are drafted in the first instance by a junior attorney.  This division of labor is efficient and, if anything, encourages the intellectual rigor that Mr. Domnarski seeks.  Particularly among federal appellate clerks, the new attorneys tasked with this drafting are well trained and experienced in intellectually rigorous research and analysis through courses at top law schools, and often MBA or Ph. D programs, and service on law reviews.  Senior attorneys or judges signing their names to the final work product inevitably put their own stamp on it - and rightly so, as broader experience provides a sense of the contours of the field and what arguments work and don't worn that a junior attorney lacks.  This iterative and dialogic process is highly conducive to rigor and allows the "personal style" of the signatory to fully flourish.

It is in the nature of Mr. Domnarski's argument that it cannot be supported.  A judge's body of work is that judge's personal style.  If Judge Posner's opinions are to be compared with those of judges that use "ghostwriters," how about including self-drafters who lack the silver tongue and academic credentials of a Judge Posner?  But there is simply no way to know who does and does not write some or all of their own work.  In effect, Mr. Domnarski chooses to evaluate the entire judiciary by comparison with the work of a handful of its leading lights.  To attribute the difference to the drafting process, though, defies logic.  The difference is one among the judges he chooses to compare.

One thing that does seem patently wrong in Mr. Domnarski's argument is the suggestion that "ghostwriting" has somehow reduced the intellectual rigor of the judiciary's body of work.  A comparison of today's opinions with those of 100 years ago, when "ghostwriting" was less common, refutes that notion.  Back in Chief Justice Marshall's day, the federal caseload was low enough that judges could spend the time necessary to produce comprehensive, reasoned opinions on their own - though one can question whether this actually improved the "honesty and transparency" of the conclusions of such strategically obscurantist opinions as Marbury v. Madison or Johnson v. McIntosh (talk about pounding the table).  

But by the turn of the last century, the federal court caseload had reached a level where, notwithstanding the literary merit of opinions drafted by the likes of such luminaries as Holmes, Brandeis, Cardozo, Friendly, or Hand, certainly the bulk of what came out was thinly researched and argued and often simply ideological.  Or compare the law office history of Justice Black's First Amendment opinions with the dueling historical analyses of Justices Souter and Rehnquist in Seminole Tribe v. Florida.  To suggest that a return to the practices of the 30s or earlier would increase rigor is simply fantasy.

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