conscience in decision maling.doc - 1 Copyright(c 2013 Duquesne University Duquesne Law Review Winter 2013 Duquesne Law Review 51 Duq L Rev 95 LENGTH

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Unformatted text preview: 1 Copyright (c) 2013 Duquesne University Duquesne Law Review Winter, 2013 Duquesne Law Review 51 Duq. L. Rev. 95 LENGTH: 29045 words Article: In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions NAME: Sarah M.R. Cravens* BIO: * Associate Professor of Law, University of Akron. A.B. Princeton University, M.Phil. Cambridge University, J.D. Washington & Lee University School of Law. Many thanks to all those whose helpful comments and questions have improved this paper along the way, especially to those who attended the Fourth International Legal Ethics Conference at Stanford University, to those who attended the Northeast Ohio Faculty Colloquium, and to my colleague Elizabeth Reilly. TEXT: [*96] I. Introduction A. Looking at Judicial Conscience Justice Holmes, an icon of both the theory and the practice of the appellate judicial role, once famously said that the job of the judge is not to "do justice" but simply to apply the law. n1 Along similar lines, law professors are forever reminding our students that when referring to judicial opinions, they ought to say that courts "hold" or "state" or "reason," but not that they "feel" or "believe." But, of course, judges are human, so we know that they do feel and believe things. They have convictions and commitments that are important to them, both personally and in their official capacities, both on and off the bench. While it is not commonplace, one does find statements of commitment to judicial conscience in judicial opinions. The research for this article, which focuses on the opinions of federal appellate judges, has yielded many examples of courts or individual judges who do feel compelled to "do justice" with reference to their conscientious commitments. They express openly and often act on these conscientious commitments, both professional and personal, in the decision-making process, whether or not the "just" outcome is actually available to them as a matter of law. This means that at times, as a matter of conscience, judges do speak out in official written opin [*97] ions against the apparently straightforward application of established law. As might be expected, there are also opinions in which judges speak out specifically against such expressions of conscience, either as a matter of explaining what restrains that judge from saying more, or as a matter of questioning the propriety of a competing opinion in the same case. In practice, there is little clarity, and certainly less than perfect consensus, about this aspect of the appellate judicial role. This article explores the propriety of the use of federal appellate opinions--especially concurring and dissenting opinions--as platforms for explicit statements of conscience. The discussion here is less about the use of those conscientious commitments in reaching a decision, and more about what judges actually say about their own conscience in their opinions, and where and how they say it. It assesses normative questions about whether these expressions are generally a good or a bad thing in the larger context of the judicial role. Judicial writings are, after all, called "opinions," but there are substantial questions about whether these opinions are supposed to include anything more or other than strict legal interpretation. This article explores the contexts and ends of expression of judicial conscience in order to determine the limits of its legitimacy. The article does not catalog the psychological or sociological literature on conscience. Nor does it attempt to define conscience as distinct from any other kind of moral commitment. n2 Instead it 2 will be limited to an exploration of what judges themselves actually say on the record in their official opinions that indicates some resort to what those judges themselves refer to specifically as their "conscience." B. Lack of Consensus or Clarity The lack of clarity, in both theory and practice, as to where these expressions of conscience belong (if anywhere), and what they may or should include, is revealed in the lack of a consistent practice and in the varying reactions of individual judges to the choices made by their colleagues. One example of a hesitant uncertainty about what the judicial conscience is, and how it ought to be used in the decision-making process, appears in an old case from the [*98] Seventh Circuit. Judge Grosscup, in a dissenting opinion in a case about gambling, wrote: Gambling and gambling devices are condemned by the laws of every state and territory, except perhaps New Mexico. Upon this it can be safely predicated that the conscience of the people of the state in which this court sits; of the people of the three states that constitute this circuit; indeed, of the people of every state and territory, except a little territory bordering on Mexico, condemns the practice of gambling. Gambling and gambling devices are condemned, also, by the enactments of congress, in the statutes forbidding the use of the mails in aid of lotteries and other gambling purposes. Thus the national conscience is seen to be outspoken against the practice. Nothing could be conceived more conclusively showing a general conscience, and a general conception of policy. Unless a moral sense, thus widespread and unanimous, may be accepted as the conscience, not simply of the chancellor, but the judicial conscience, I am at a loss to know where to look for any authority for judicial conscience. n3 Despite the rhetorical uncertainty of Judge Grosscup's position here, his position may be contrasted with the more recently stated view of Judge Gould of the Ninth Circuit, who wrote as follows: "I pen this dissent to explain my views, because a dissent is a matter of individual judicial statement and individual judicial conscience." n4 Notably, neither of these judges made an effort to provide any authority for their understanding of, or authority to make reference to, "judicial conscience." In this, they are by no means alone. There is great variety in the apparent meaning and scope given to the idea of judicial conscience as expressed in judicial opinions, and very little, if any, support offered for any of those positions. Thus, only an examination of the practical usage of the term can hope to yield a better understanding of the legitimacy of these expressions. n5 [*99] As to more specific questions of placement, there is a similar lack of clarity and consistency. Indeed, one may find cases in which the three judges on a single panel agree about an underlying substantive point of right or wrong, justice or injustice, but apparently disagree about the propriety of whether to mention their conscientious concerns and about where to make that mention. They may make their points in separate opinions and give differing kinds and degrees of explanation for the approaches they have taken. n6 For instance, a majority might apply the law as it stands, but as a matter of conscience note its harshness; a concurrence in the same matter might particularly note the fact of binding precedent in the face of both personal and institutional conscientious objections; and a dissent might state without further explanation a level of conscientious discomfort rising to an inability to follow the established law. n7 This last approach is perhaps most clearly an abdication of the judicial obligation to apply the law, but the fact that it happens at all demonstrates some practical need for such an opportunity for expression on the part of those who occupy the judicial role. This is also a topic on which many judges have spoken in their off-the-bench capacities, in speeches or essays intended either for those in the legal academy or for the general public. In those off-the-bench contexts, judges are all over the map in their assessments of what is appropriate to the judicial role, and why, on what course of action is appropriate, and which are the proper motivations for the judge. n8 They are in substantial agreement, however, about the fact that these are not purely academic questions, but rather, real and painful dilemmas they must face in the fulfillment of their basic role obligations. C. Limiting the Field The field for this paper is limited to opinions written by intermediate federal appellate judges. In addition to simply narrowing the field to a more manageable number of opinions, this limitation [*100] eliminates a variety of complications. First, by eliminating the state-court-specific issue of the potential impact of the opinions on retention by re-election or reappointment, it considers only the work of those who have the comparative security of life tenure, which might factor into judicial decisions about what to express in written opinions. In this way, any (to my mind improper) representative notions of the judicial role and accountability in that role, are largely eliminated. n9 Second, it excludes the opinions of courts of last resort, which have more commonly been the focus of attention in discussions of the proper uses of concurrences and dissents. n10 The current Model Code of Judicial Conduct does not 3 speak to the issue of concurring or dissenting as presenting any questions, ethical or otherwise, n11 but the 1924 ABA Canons of Judicial Ethics did have one paragraph on the subject. Former Canon 19 (on Judicial Opinions) said, in pertinent part: It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusions and the consequent influence of judicial decision. A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort. n12 There is no such special consideration of separate opinions at the intermediate appellate level, though of course the second sentence of the passage may be applied with equal meaning for courts of all [*101] levels. Despite the lack of official attention or instruction, at least one of the rationales supporting the worth of concurring and dissenting opinions--that is, signaling to a higher court an argument for a change in the law--is irrelevant to a court of last resort. But more importantly, thinking in terms of differentiated understandings of the judicial role at different levels, a court of last resort--particularly the United States Supreme Court--may be more readily accepted as one that more naturally has to make more ultimate political or value judgments. n13 Thus, the central question of this paper might be answered differently in the context of courts of last resort. n14 Third, by taking district court judges out of the analysis, the article contemplates collegial judging in which there is more obviously room for one judge to disagree with colleagues on a panel without practical disruption of the status quo in the law. Fourth, it significantly limits the number of questions of fact, as opposed to questions of law. The questions of fact remain to some extent in the appellate review of findings of sufficiency of evidence, harmful error, and abuse of discretion, and these are situations that do tend to provoke personal views in appellate opinions. Again, the sheer number of these issues is reduced at the appellate level, and the focus is thus more clearly on developing and clarifying the law and its practical application with regard to these fact questions, as opposed to the broader ranging task of actually making the basic factual findings at the district court level. Ultimately, this limitation to the opinions of federal appellate courts presents the question in its most distilled form, considering the perspective of non-elected, life-tenured, and (at least theoretically) non-last-resort judges, n15 who deal primarily in questions of law rather than fact. Moving from conclusions about expressions of conscience in this limited context, one might then be able to go [*102] further with regard to assessment of the propriety of the practice by judges in other courts. This article thus only tackles a small piece of the bigger question about the extent to which judges are meant to consider or use their own views or consciences in their judicial decision-making, or how they might operate without them wherever practical judgment is required. The answers to these questions will of course have implications for their fit into a broader theoretical and practical theorization about the fulfillment of the core commitments essential to the integrity of the judicial role. D. Background Theory of the Judicial Role The understanding of the judicial role that lies at the heart of this paper is one of institutional trusteeship of judges. In this model, judges act as trustees of the corpus of the common law, maintaining its integrity through fidelity to past decisions and continuing consideration of fit and consistency between and among various areas of the law as they develop. n16 Intermediate appellate judges, as trustees of the law, are accountable to the public for their management of the corpus and provide this accountability primarily through the body of their opinions. These judges are in a position to develop and maintain a special perspective on the law, one that is both practical and theoretical, both specific and overarching, both immediate and long term. Furthermore, along with all of the many legal decisions judges must make in the execution of their responsibilities, they must always be making decisions about allocation of court resources. Trusteeship implicates a broad array of institutional responsibili [*103] ties--core commitments such as fidelity to legal (especially constitutional) authority, impartiality, independence, accountability, and practical wisdom--to which judges must be committed. n17 They must have good judgment about these matters of resources just as they do in their application of the law. Such good judgment and practical wisdom is, for many if not all judges, and whether they mention it or not, likely a matter of conscience at some level. II. Law and Conscience A. Consonance and Dissonance 4 Law and conscience will of course often be perfectly consonant. n18 Most of the time, this should be fairly unremarkable, and thus it will not be mentioned in the mine run of opinions. In those situations where no judge on the panel disagrees on any material matter in the case, so that only a majority opinion will be published, there is often little to be gained by adding considerations of conscience or morality to support what is already established law. n19 It does happen, though, most commonly in instances in which the opinion underscores the judicial obligation of faithful adherence to precedent as a matter of institutional conscience. n20 Other common circumstances for references to conscience as further support for an otherwise already legally tenable position include matters implicating issues of judicial resources and burdens on the courts n21 other players in the justice system, n22 issues of substantive or procedural fairness, n23 and others still. n24 [*104] Such positions do not only appear in unanimous majority opinions, but also in dissents in those cases in which at least one judge believes that he or she is correct both on the law and on the morality, but is compelled to write in a dissenting opinion due to a difference of legal interpretation between the dissenter and others on the court. n25 It is the expressions of the consonance of law and conscience that appear in the concurring and dissenting opinions, though, that turn out to be more worthy of note for the purposes of this discussion. Where the consonance appears in a majority opinion, it simply has that much less force or weight, in the light of the clarity of the established law. However, this article does not limit its discussion to cases in which conscience differs from law. Any resort or reference to conscience is ripe for discussion in the effort to develop a fuller and clearer understanding of what judicial conscience is and how it fits into the shape of the judicial role. n26 While the propriety of judicial reference to conscience in further support of an uncontroverted legal interpretation is perhaps an [*105] interesting academic question, the more difficult question is what ought to happen when a judge's considerations of conscience are in conflict with established law, or at any rate with the interpretation of the law accepted by a majority of the relevant panel. Any judge who feels faced with a serious dissonance between law and conscience has an array of options at least apparently open to him. To state them roughly and in relatively short order, a judge could: (1) keep silent about the conflict and simply follow the law; n27 (2) follow the law, but state the conflict (whether in majority, concurrence, and/or dissent); n28 (3) comply with the law and keep silent about the conflict from the bench, but work off the bench on law reform efforts in the area of concern; n29 (4) find a way (whether honest or disingenuous) to get to the conscientious-but-not-legal result without mentioning the conflict; n30 (5) state the conflict and follow conscience rather than law (again, whether in majority, concurrence, and/or dissent); n31 (6) dissent without giving a reason; n32 (7) recuse from the case; n33 or (8) resign from the bench. n34 How a judge ought to make the decision about which option to choose from this full array is a broader question for a separate article. This article is limited, as far as possible, to the question of the proper uses of separate opinions for the expression of personal convictions by judges of the federal appellate courts. [*106] B. "Conscience" in Judges' Own Terms When judges use words and phrases like "in good conscience" or "unconscionable," they do so in many contexts and with a broad range of ideas apparently in mind. n35 Though some scholarship in this area tends to be focused specifically on the role or expression of a judge's religious faith, n36 it can be hard to distinguish--and it is probably pointless to try to divine any distinction, for purposes of this paper--between religiously based convictions and any other personal commitments that underlie actual judicial usage of the word "conscience." n37 It is difficult to pin down a particular consensus definition of conscience or the unconscionable, either in the actual usage by judges or in the legal academic literature that has built up around this concept. Much might be included, but some usages are clearly of more import than others for this topic. Black's Law Dictionary defines conscience as "1. The moral sense of right or wrong; esp., a moral sense applied to one's own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people." n38 This underscores the over [*107] lap, and thus the lack of specific distinction, among the terms "conscience," "morality," and "justice." n39 These terms must, to a certain extent, be left a bit muddy, because one must take them as the courts use them. Judges are not necessarily philosophers or linguists, and they are not typically concerned with precision about distinctions among these particular terms. n40 Furthermore, to get too technical about the verbal or semantic distinctions here might even encourage an unwarranted and unhelpful formalism by judges. Examination of the variety of uses of these terms by judges does, however, reveal some broad categories of apparent meaning. Sometimes it is a matter of a judge's core personal conviction about right and wrong; sometimes it is a matter of responsibility for the integrity of the institution (for the proper role of the court, for its reputation, or for proper use of its resources, for example); n41 sometimes it is an at...
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