The judiciary’s power comes from its words alone—judges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they write—opinions scrutinized by litigants, attorneys, other judges, and the public—are held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion. One way to judge judges is to read their opinions. Although a judge’s role in the courtroom is a crucial judicial function, only those in the courtroom witness the judge’s conduct, and most of them are concerned with their case alone. Judicial writing expands the public’s contact with the judge. Writing reflects thinking, proves ability, binds litigants, covers those similarly situated, and might determine the result of an appeal. Judges hope that what they write will enhance confidence in the judiciary and bring justice to the litigants. The heart of a judge’s reputation and function rests with the use of the pen.

Judges must resolve controversies. Processes in the courtroom might influence a judge’s decision, but the written opinion rationalizes issues, explains facts, and settles disputes. Opinions open windows into judges’ minds and show how judges fulfill their duties. They provide accountability because they are available to the public, the litigants, and higher courts to read and review. An opinion’s quality is determined by tone, organization, style, method, and reasoning. Because opinions offer a glimpse into a judge’s mind, they must be credible, impartial, dignified, and temperate. As one scholar explained, “Recognizing the extent to which [judicial] opinions are subject to scrutiny by the legal community, contributing substantially to legal scholarship, education, and history, it is crucial that the content of these opinions meet high ethical standards.”

To meet these high ethical standards, a judge must ensure accuracy and honesty in research, facts, and analysis. Opinions must exhibit the qualities of good moral character: Candor, respect, honesty, and professionalism. These qualities are not the only considerations in opinion writing, but they offer a required starting point.

The way an opinion is written can tell the reader as much about a judge as the opinion’s substance. Sloppy writing shows that the judge put insufficient time into writing the opinion. An opinion that presents a slanted version of the facts or gives short shrift to a seemingly meritorious argument might suggest that the judge did not explore both sides of an issue. Lambasting or lampooning lawyers or litigants might indicate bias. An attempt to shoehorn facts into a particular result when further research might yield a clearer, more convincing, and different result might show poor reasoning. Perhaps most important of all, poorly drafted opinions “all too often reach the wrong result from an objective, or philosophically neutral, point of view.” Ethical judicial opinion writing inextricably intertwines style and substance.

Source: Alifya V. Curtin, Gerald Lebovits and Lisa Solomon. Ethical Judicial Opinion Writing. 21 Georgetown Journal of Legal Ethics 237-238. 2008.