Must District Judges Give Reasons?
Jonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.
The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:
The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”
Attorney for Evicting Party: May I ask the reasons, your Honor?
The Court: Just because I said it, Counsel.
I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]
So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?
I ask as a facet of the work I’m doing on when district judges write opinions (versus orders). The large-scale empirical project I’ve undertaken to answer that question is still ongoing, but my preliminary findings highlight the relative scarcity of opinions as a proportion of judicial workproduct (3% of judicial actions taken in my study, around 10% of non-ministerial/scheduling actions). Previous work on this subject has suggested that judges provide long-form explanations, complete with citations to “cases . . . statutes[s] . . . treatise[s] . . . article[s] . .. note[s] . . . [and] blawg[s]” when the issues are hard. When the issues are “easy” they write orders. When the issues are really easy, and time is crunched, they simply rule. “Just because I said it.” But I think that this story is wrong.
My hypothesis, which I hope the data will prove out, is that judges explain themselves to maximize certain ends: (1) avoiding reversal; (2) gaining reputation with certain members of the bar; (3) intellectual satisfaction (i.e., more opinions in con law cases than social security cases); (4) free time (i.e., less opinions as workload increases); (5) reputation as a function of race and gender;etc. That is, the universe of opinions (what we call doctrine) is likely to be significantly different from the universe of what judges do in contested matters, in ways that we can predict. This isn’t necessarily bad, although I am looking to see if certain classes of litigant – those represented by AMLaw 100 firms; corporate parties – are more likely to get gold-standard justice instead of “because I said it” justice.
But Kozinski offers a different view. In his view, Judges should presumptively give reasons. It isn’t a matter of weighing cognitive and other costs against rule-of-law benefits, it is a command. But can this be right? That is, when appellate courts like Judge Kozinski’s own Ninth Circuit affirm on the briefs without reasons, is that presumptively illegitimate? (If so, the Judge’s well-known support for non-precendential opinions is surprising). Is the cert. pool practice up in SCOTUS a rule-of-law problem? More generally, under what circumstances does due process require explanation?
In my view, this is a very hard problem. It simply isn’t true that current practice gives explanation in the large majority of contested matters where explanation is due. Take discovery practice. It was my experience while a litigation associate that district judges make many, many discovery related decisions by unexplained order, usually splitting the difference between what was requested in discovery and what was sought to be quashed. My study has confirmed that discovery decisions almost never make it into westlaw. But the issues in such decisions are hard, requiring courts to balance privacy interests against truth-seeking, against a very complex and mutable doctrinal context, see, e.g., the privilege-abandonment rules.
I’m also not sure that it is true that courts gain legitimacy by providing reasons. At least as I understand the procedural justice literature, voice effects arise when you get to participate in the process, regardless of whether the judge gives a reason for her decision or not. Do folks aggrieved by Kelo, Lawrence, Lopez, McClesky, etc. feel better because the Court explained itself? I doubt it. Indeed, I bet in some of those cases the explanation was part of the outrage. What due process arguably requires is simply an open mind and a willingness to be persuaded. Doctrine, on the other hand, requires explanation.
But even if due process doesn’t require district courts to give reasons, Judge Kozinski’s position feels right. (Indeed, his entire dissent is powerful.) My study seems to be finding that unreasoned disposition is the norm, even though it is normatively problematic. I’m not sure that this is a problem that can be solved by more judges, or less lawyers. Perhaps the problem is that lawyers have too many opportunities to raise potentially meritorious issues over the life of a lawsuit. Hmm. If we think that every hard problem deserves a reasoned answer, perhaps judges should increasingly (as some do already) limit the number of motions lawyers can make in one action.