Judges on Judging: Views from the Bench

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

11
Precedent and Policy: Judicial Opinions and Decision Making

WALTER V. SCHAEFER Chief Justice, Supreme Court of Illinois

In the main, lawyers tend to treat all judicial opinions as currency of equal value. Exceptions must be made, of course, for the opinions of the acknowledged masters and for those opinions which carry dissents or special concurrences. But the masters are quickly numbered, and the discounted value of the opinion which carries a dissent or concurrence shows upon its face. When allowance has been made for the exceptions, there emerges the working thesis of the bar and perhaps even of the courts: "A case is a case is a case." To the working profession there is no such thing as an opinion which is just "a little bit" precedent or a precedent pianissimo. All of them carry the same weight.

Yet, when the judicial process is viewed from the inside, nothing is clearer than that all decisions are not of equivalent value to the court which renders them. There are hidden factors of unreliability in judicial opinions, whether or not there is dissent or special concurrence. Many an opinion, fair upon its face and ringing in its phrases, fails by a wide margin to reflect accurately the state of mind of the court which delivered it.

Several ingredients combine against complete certainty, even at the moment of decision. For a reviewing court the common denominator of all cases is that they must be decided, and must be disposed of, ordinarily by opinion. There are no intermediates. Judgment must go for one party or for the other. There are many cases in which complete conviction comes rather quickly. But there are many others in which conviction to a degree comes hard, and complete conviction never. Uncertainty, however, will not justify a failure to dispose of the case. So some opinions get written because the case must be disposed of rather than because the judge is satisfied with the abiding truth of what he writes.

That process is repeated with the other members of the court who are

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