Judging and reason
Instead of focusing on judicial power, a second argument for judge-centered jurisprudence focuses on the fact that judges provide written opinions analyzing the meaning of the law - to borrow a phrase from the constitutional scholarship of the 1950s, “reasoned elaborations” of the law.
That makes judges nearly unique within the legal system. Statutes, even statutes with preambles, do not explain themselves, and politicians talk in soundbites rather than arguments. They certainly do not defend one interpretation of law over others considering objections of injustice, inefficiency, or formal incoherence. Juries say “Guilty” or “Not guilty,” “We find for the plaintiff” or “We find for the defendant,” without stating why. Officials act, and give away as little as they possibly can about why they act as they do. Only judges work out disciplined arguments about law in a public setting. That is why their opinions are the focus of attention, and rightly so.This argument might mean several things. One, plainly true but essentially trivial, is that published judicial opinions provide excellent exemplars of legal reasoning. But the fact that published opinions serve an indispensable pedagogic function implies nothing about whether jurisprudence should focus on them for reasons other than their ready availability. A second interpretation of the argument, plainly false, is that reasoning about the law can take place only in written, published form. A third, equally false, is that only judges analyze the law in writing. Lawyers in law firms and government agencies provide their clients or supervisors with written analyses of law all the time.
More plausible is the thought that someone writing an opinion for publication will reason more carefully than she would if the analysis were unwritten or confidential. Because judges, unlike lawyers, publish their analyses, their handiwork is likely to represent higher-quality elaborations of the law. However, there are significant problems with this view.
First of all, many judicial decisions result in no written opinion. A trial judge, for example, makes dozens or even hundreds of legal rulings about objections to lawyers’ questions, without providing written opinions. Second, as we have seen, even federal courts of appeal provide published opinions in fewer than one case in five. Most importantly, the “reasoned elaboration” view simply oversells the quality and wisdom of judicial opinions. Every serious reader of judicial opinions knows how frequently they fall short of the high ideals of “reasoned elaboration.” They are often sloppy, illogical, or tendentious in their selection of facts. Indeed, the very fact that opinions are published encourages judges to legitimize their conclusions by writing what is, in effect, a brief supporting their result. Far too often, for example, readers learn the “bad facts” that undermine an otherwise persuasive appellate opinion only by reading the dissent - a clear indicator that the majority opinion’s author is glossing over weaknesses to sell a result, rather than offering a balanced analysis of the case.I do not wish to exaggerate this objection. Courts at every level contain superb judges. I recently saw an administrative law judge - by no means a lofty figure in the judicial hierarchy - craft a beautifully structured, gracefully written, logical, and artfully appeal-proofed opinion in ninety minutes between the end of a hearing and the moment she read the opinion aloud in court. But of course courts also contain less superb judges. Another, more experienced, judge in the same court took three months to write an opinion that was poorly reasoned and reached its result because the judge confused two pieces of evidence. Even US Supreme Court opinions contain solecisms and careless errors.[274]