Taking Stock of Judicial Reasoning
December 30, 2002 Published Work
Reprinted with permission from The Connecticut Law Tribune, December 23, 2002
The Indiana Supreme Court recently disciplined a lawyer because of a footnote in his appellate brief. The footnote described a lower court opinion as "so factually and legally inaccurate that one is left to wonder whether the [court] was determined to find for" the defendant "and then said whatever was necessary to reach that conclusion." The Supreme Court decided that this footnote "undermined the public's confidence in the administration of justice" and constituted a violation of Rule 8.2(a) of the Rules of Professional Conduct. The offending lawyer was suspended from the practice of law for 30 days.
My purpose here is not to criticize the Indiana Supreme Court for its disciplinary ruling, although I think that the sanction was disproportionate to the offense. Instead, my purpose is to criticize the sentiment expressed in the footnote – that judicial decisions are often "result oriented." I understand that phrase to be pejorative and to mean that a decision is somehow illegitimate.
I long ago grew weary of this criticism of the judicial decision-making process. A necessary implication of this criticism is that, if the judge had just "followed the law", she would have reached a different decision. In other words, the criticism proceeds from the premise that legal rules are outcome determinative. All a judge has to do is apply the law to the facts and, voila, the "right" decision is the outcome of a simple logical syllogism.
That school of legal thought reached its zenith in the late 19th century, but it has long since been discredited, and properly so. Yes, there are cases where the law is unambiguous, the facts uncontroverted, and only one legitimate outcome is possible. But far more frequently, the law is not perfectly clear, the facts are controverted, and reasonable minds can disagree about the correct outcome of a case. In short, legal rules are often not outcome determinative.
In cases where the law itself does not compel a particular outcome, what is a judge to do to avoid the criticism that she engaged in result oriented decision-making? Indeed, isn't every decision she reached under such circumstances vulnerable to the "result oriented" charge?
I think that a more mature view of the judicial decision-making process recognizes that, in the many cases where the law does not dictate a particular outcome, the judge has no choice but to "bridge the gap." This is an unavoidable aspect of the decision-making process. Because it is unavoidable, it is unfair to describe a decision that results from that process in pejorative terms like "result oriented" or "legislating from the bench."
This is not to say that there are never cases in which a judge utterly disregards the law when rendering a decision. But such cases are the exception to the general rule that judges approach their jobs in good faith. They grapple with the law. They acknowledge and deal with precedent as best they can. Ronald Dworkin, in his book "Law's Empire," analogized the process to a chain novel; each time a judge decides a case, she writes a new chapter in a book, doing her best to avoid an abrupt transition from the previous chapter, which was written by a different judge. In other words, although the law may not dictate a particular outcome, it nonetheless constrains the decision-making process. Indeed, that is what distinguishes judges from legislators, who suffer from no constraints except those that federal and state constitutions, and the electorate, impose.
Many will argue that my description of how judges decide cases is just plain wrong. They will argue that judges decide cases based on their reaction to the facts and that they then cobble together legal opinions that are nothing more than post-hoc legal rationalizations for fact-driven opinions. I respectfully disagree with that sentiment, although I cannot disprove it. Again, I assume that judges approach their jobs in good faith. To be sure, judges are human beings and I have no doubt that they often react viscerally to the facts of a case. But as long as they then ask themselves what the "law" has to say about how a case should be decided, I think they have done their job and deserve our respect. We do not have to agree with their decisions, but we shouldn't call the decisions illegitimate. When we do, and especially if we do so publicly, the criticism that the Indiana Supreme Court directed toward the author of the footnote is justified.