Defending Judges’ Expression of Personal Views in Opinions

David Schraub:

Professor Kerr also expresses his discomfort with “the propriety of placing such views [after upholding a law, nothing that the law in question is a bad law and should, in a world of better constitutional law, be held unconstitutional] in the Federal Reporter instead of a law review or published speech.” I strongly disagree….

Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary.

Read the whole thing. Orin’s position is certainly not unreasonable, but I think I’m with Schraub on this one. And I’d add a third reason: if judges’ can freely express their discomfort with the law they’re upholding and the rules they’re upholding it under, it reduces the temptation they might have to distort the law so as to not be seen as endorsing the law and the underlying doctrine.

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