Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

Preface

TO A reporter's question, "Does the average American understand the judicial process?" former congressman and later federal Court of Appeals Judge Abner J. Mikva responded: "No. In a sense [people] know less about the courts than they do about the Congress. They may have a lot of mistaken views about Congress, but the problem with the courts is that they are so mysterious. I worry about that a great deal. Some of my colleagues on the bench think that is why the judicial branch is given a great deal of respect, that it isn't as well known as the other two branches. I hate to think that we're only beloved in ignorance."1 Courts and the judicial process are generally open and accessible, though particular aspects are closed or open only to professional observers. Whatever mystery surrounds the judiciary undoubtedly stems from what Judge Jerome Frank calls "the cult of the robe" 2 and Justice Felix Frankfurter felicitously describes as "judicial lockjaw." 3

The "tradition" of judicial lockjaw, honored more often in rhetoric than in practice, evolved because of a number of institutional, political, and historical considerations. Article III of the Constitution, which vests the judicial power in one Supreme Court and in such lower federal courts as Congress may establish, provides that the judiciary shall decide only actual cases or controversies. From the earliest days, federal courts have therefore refused to render advisory opinions or advice on abstract and hypothetical issues. 4 Intimately related to the view that advisory opinions would violate the principle of separation of powers and compromise judicial independence, justices and judges contend that they should not offer off-the-bench commentaries on their decisions and opinions. As Justice William Brennan once recounted:

A great Chief Justice of my home State [ New Jersey] was asked by a reporter to tell him what was meant by a passage in an opinion which has excited much lay comment. Replied the Chief Justice, "Sir, we write opinions, we don't explain them." This wasn't arrogance--it was his picturesque, if blunt, way of reminding the reporter that the reasons behind the social policy fostering an independent judiciary also require that the opinions by which judges support decisions must stand on their own merits without embellishment or comment from the judges who write or join them. 5

Explanations of judicial opinions have also been thought to be ill advised for more prudential reasons: Justice Hugo Black, among others, felt that off-the-

-xi-

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