ME, MYSELF, AND THE COURT

By JOANNE MARINER

Monday, Sep. 30, 2002

Dressed in solemn robes and presiding over a decorous courtroom, the judge is an impersonal figure. The embodiment of legal authority, the judge is supposed to be the conduit through which the law speaks.

Like a piece of Kabuki theater, the judicial performance is a highly stylized affair. Its setting, the courtroom, is a significative and instantly recognizable space, and it relies on a set of props that have been hallowed by centuries of reverential use.

The justice system's ceremonial trappings are equally evident in judicial opinions, which adhere to a strict set of formal conventions. Because the goal of the written opinion is to make the end result seem inevitable - compelled by the law, not the vagaries of judicial discretion - the judicial voice tends naturally toward a sort of authoritative blandness. Subjectivity is banned, polemic is suspect, and authorial idiosyncrasy is carefully circumscribed.

There are a few well-known exceptions, of course - Oliver Wendell Holmes' epigrams, Judge Alex Kozinski's pop culture references, and Judge Bruce Selya's extravagantly obscure vocabulary words come to mind - but the generalization is still a fair one.

"I Botched It"

The vehicle for this judge's assertion of personality was the Richard Reid case, better known as the shoe-bomber prosecution. Reid, a British national, was caught by vigilant flight attendants last December as he apparently attempted to blow up a transatlantic airliner using bombs concealed in his shoes. Facing a variety of federal charges, Reid was being detained in Boston and represented by a local public defender.

The court's opinion, issued last July 26, begins unremarkably. The specific question at issue is whether the court's previous order in the case, issued on an emergency basis, was valid. That order had barred the government from interfering with Reid's communications with his attorneys, while also mandating that Reid not be removed from the district without prior permission of the court. The latter requirement, as the judge was to explain, reflected the concern that Reid was prime material for trial before a military commission.

As is customary, the first few pages of the opinion recite the case's factual background and procedural history. The language is neutral and impersonal, and it is written from an objective third person point of view ("the Court" did this, "the government" did that, and "the defendant" did something else).

But suddenly, just as the narrative starts to gain momentum, things go startlingly awry. "The Court" leaves the scene, and the judge himself - a typically fallible human, as it turns out - enters.

"I was in the midst of impaneling a jury," the judge explains, switching to the first person voice. Informed of an emergency motion made by defendant's counsel in the Reid case, "I scheduled a prompt hearing that same afternoon - and botched it."

"A Rather Nice Ring"

From there, the judge goes on to admit a series of mistakes. His tone - humble, personal, apologetic, and, in a hapless sort of way, humorous - is nearly as foreign to judicial opinion-writing as his willingness to admit error. (Let me just note that my year spent as a law clerk in no way prepared me for it.)

At one point, reflecting on his own previous declarations in the case, he notes that while they had "a surface plausibility and a rather nice ring, the entire analysis [was] simply wrong."

It is not until quite far into the opinion that the judge clarifies, in a footnote, the reasoning behind this seeming display of multiple personalities. In his "note on style," he explains: "I write personally when revealing my own human mistakes and adopt 'the Court' usage when - I believe accurately - delineating the law."

I Respectfully Dissent

If only it were so easy to separate the human from the judicial. But all judicial reasoning, no matter how carefully dressed up in neutral and uniform language, is personal. The law does not apply itself, and the different judges who do apply it - with different perspectives on the law, facts, and context - reach different outcomes.

Indeed, if it were possible to achieve real uniformity in the judicial thought process, there might be more room for subjective modes of judicial expression. The uniformity of the judicial voice, like the judge's robe, is a disguise, though perhaps a necessary one.

Just as the little old man with the wrinkled face projects the Voice of Oz, it is the judge's very humanity that makes him need to hide it.


Joanne Mariner is a FindLaw columnist and human rights attorney. When she's not musing on the judicial persona, she writes about war crimes, terrorism, and other serious stuff, available in previous columns posted in the FindLaw archive.

For those more interested in the expressive side of the judicial spectrum, Mariner directs the reader to the following opinions: Judge Kozinski's dissent in the 2002 case of Gerber v. Hickman (the prisoner semen case), and Judge Kozinski's panel opinion in the 2002 case of Mattel v. MCA Records (the Barbie doll case, which ends on a distinctly unjudicial note: "the parties are advised to chill").

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