“I write entirely to find out what I think, what I’m looking at, what I see and what it means.” This particular quote is attributed to Joan Didion, but it is an incredibly common statement, usually uttered as a valediction of the writing process. (CF – Stephen King – I write to find out what I think.) These statements are, at least as uttered by writers, uncritical benedictions of the process of writing. But examined more closely, these statements seem to reveal a somewhat uncertain connection between an idea and its eventual home in words. At what point does the process, especially its mechanical, instinctive elements, begin to exert unexpected control over the contents of the articulated thought. The need to persuade or advocate, implicit in any communication, seems likely to begin to shape the content of the point that writing advocates. In the context of novelists, the causal connections between the writer, the act of writing, and the end result, seem relatively unimportant. For the reader, the end result, the written text, is the only thing that matters. Furthermore, in the context of writers such as Didion & King, the reader has the freedom to either agree or disagree with the thought which they have articulated. However, the mandatory power upon human action produced by a written judicial opinion is far beyond the imagination of writers who don’t act with the power of the state behind them. Below the fold, I explore some of the complications that the act of writing by judges has on our traditional notions of the role of the judiciary.
Since the realist movement of the 1920s and the 1930s, judges, when writing about the act of judging itself, have largely replaced a formalistic conception of ‘judge as finder’ with a model of the ‘judge as creator’. Particularly important, in this changed conception, is the acknowledgment of the critical role of the ‘hunch’ in initially steering the direction of the judges as they begin their long journey to the eventual decision. A notable article, by Judge Joseph Hutcheson, called it the ‘judgment intuitive’. Hutchenson distinguished between the ‘judgment intuitive’ which actually produced the judgment or decision, and the ‘apologia for that decision, the decree….the rationalization by the judge on that pronouncement.’ This conception of the judicial process as largely driven by a judge’s initial hunch has been publicly confirmed by judges as diverse as Patricia Wald, Richard Posner, and Ruggerio Aldisert.
And yet, despite this widespread acknowledgment of the role of intuitive guesswork in producing legal results, acknowledgment of the probalistic heurestics that have driven the result can be found almost nowhere in any judicial opinion which explains the result. We may all be realists now, but almost all judicial opinions, at least in the certainty with which they make their arguments, remain stubbornly formalistic in their insistence that they have reached the correct solution. As discussed by Dan Simon, judicial decisions have a remarkable tendency to steer every legal material in their direction, with exacting certitude that, by some marvelous coincidence, every piece of legal material at play in the decision favors the outcome that they have reached. Meanwhile, on the other side, the dissent will be equally certain that every piece of legal material happens to favor the outcome that they’ve reached. The whole conflict could contain the subtitle: When Hunches Go Wrong.
Indeed, although judges acknowledge both the role of the ‘hunch’ and the seeming incongruity with a general notion of judge as discoverer, not creator of the law; they seem remarkably unbothered by the discrepancy. Indeed, they are able to describe the act of judging in terms of probabilities and informed guesses, but there is never an acknowledgment, that they, at least, happened to get their hunches wrong. Instead, they go on judging, writing opinions filled with certainty. Particularly intriguing, in this regard, is the time honored judicial rhetorical staple ‘the opinion that won’t write.’ Although actual examples are relatively limited, judges frequently mention that certain opinions simply ‘won’t write’; implying that the writing function acts as a check upon the judge’s intuition, ensuring that any hunch which happens to be wrong will be detected in the writing process, which is more closely in accord with overall notions of the ‘judge as discoverer’. However, judges on opposing sides of a case seem both able to successfully write opinions, usually rather stridently stating the correctness of, presumably, their own hunch and the wrongness of the opposing hunch.
The concept of a hunch, at least as articulated by the judiciary, remains somewhat flattering to a judge’s self conception. Judge Hutcherson, for instance, associates the ‘hunch’ with the ‘hunches’ of other professions, such as a detectives, scientists, or mathematicians. The ‘hunch’ is simply a reframing of a fundamentally dispositionist conception of judging; the judge is now a ‘creator’ rather than an interpreter’ but some aspect of their semi-conscious action, even if difficult to fully explicate, is driving the decision that they reach. The ‘intuitive’ model of judging may, however, obscure the process of writing in shaping and convincing a judge of the correctness of their own opinion.
For instance, Judge Cardozo wrote that ‘in the hardest cases, in cases where the misgivings have been greatest at the beginning, they are finally extinguished, and extinguished most completely.’ Perhaps, in such cases, the misgivings are extinguished most completely because the writing process, and therefore the process of self-persuasion is the most extended.
An article, Writing, Cognition and the Nature of the Judicial Process by Chad Oldfather, surveys the significant body of research surrounding decisionmaking, and people’s evaluation of their own processes. There has been a significant body of research, led by scholars such as Timothy Wilson, that people are often unable to do more than offer hypotheses about the mental processes that caused certain behavioral actions. The processes of expressing thought have been found to have unexpected thoughts on a person’s decision-making processes. For instance, verbalization, during the process of decision making, has been found to have a negative effect on a subject’s ability to make intuitive decisions, or to evaluate structural, rather than surface analogies between two sets of narratives. There is very little psychological study on the effect of writing on decision making.
Unlike authors, whose ultimate end point is generally open, judicial writing is inevitably oriented towards a binary choice between two possibilities. The hunch or initial intuition, in this changed circumstance, already answers, in a narrow but ultimately dispositive sense, what the judge thinks. For a judge, indoctrinated into a very particular interpretive culture that clearly defines legitimate and illegitimate forms of reasoning, writing will ultimately serve to illustrate why he thinks what he has already decided. The process of writing will primarily reinforce the judge’s initial hunch. It will provide both communicable justifications to the outside world, and teach the judge himself the reasons for his initial thought.
Attorneys, as opposed to judges, are pre-assigned their destination by the outcome which their client seeks. There is, implicit in this conception of lawyer as advocate, that the lawyer remains an independent agent whose own views can be separated from those of their clients. Recently, I participated, as all Harvard 1Ls do, in the Ames Competition. In the competition, I was assigned to defend a gun manufacturer against a negligence suit. Before being assigned the case, I was initially opposed, rather strongly, to the gun manufacturers side. But, in the process of writing a brief to meet a pre-determined outcome, I found myself, bit by bit, coming to side more and more with the gun manufacturer. The law really does seem to be on their side I murmured, as I, coincidentally, wrote elaborate arguments about why the law was absolutely, definitively on ‘my side’. I’ve had several discussions with classmates, who represented the plaintiffs. Each one, initially, had a pessimistic view of the legal chances of the plaintiffs. But, after writing their own briefs, each one emphasized ‘what a strong case we have’ and that ‘the law is on our side.’ I believe that writing, combined with the role playing that is the inevitable lot of a lawyer, can have a dramatic effect on whatever ‘personal opinion’ remains inside; ultimately, the personal opinion will merge with the professional role, to create a coherent advocate, best able to play their role within the legal system.