Doubt in Judicial Opinions

One enjoyable aspect of researching Bushrod Washington is that many of his opinions are written in an unusual style. By unusual I mean that they express doubt about whether their conclusion is correct. This is not something that you see in a typical opinion (then or now).

I wonder why. There is an adage that judges write opinions as if they are 100% certain even if they are 51% certain. I can see some instances in which expressing doubt openly would make the opinion less persuasive or less authoritative. But I can also think of cases where candor might make the end result more convincing by communicating the difficulty of the issues and emphasizing the care given to the competing arguments. I find Washington’s tack (even if it was just rhetorical) charming.

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4 Responses

  1. Chris says:

    Self-presentation aside, it could be a way of flattering counsel, and/or saving face for the lawyers on the losing side. Would Bushrod have been concerned with the institutional dignity of the bar?

  2. Joe says:

    I think certain modern day justices at times voiced doubts too.

    Justice Breyer, e.g., seems like someone who repeatedly admits that he isn’t totally sure, but judges have to make decisions, and such and such is the best bet.

  3. Mike Stern says:

    Judges aren’t the only ones who could benefit from this approach

  4. Jam says:

    https://www.law.cornell.edu/supct/html/95-1764.ZD1.html

    Scalia’s dissent in Saratoga Fishing Co. v. J. M. Martinac & Co.

    As I have confessed above, I have little confidence in my ability to make the correct policy choice in an area where courts more experienced than we have not yet come to rest. I would have been inclined to let the lower federal courts struggle with this issue somewhat longer, in the hope that there would develop a common law consensus to which we could refer for our admiralty rule, as we did in East River. Put to a choice, however, I would not select the rule adopted by the Court today.

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