Judges on Judging: Views from the Bench

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

5
What I Ate for Breakfast and Other Mysteries of Judicial Decision Making

ALEX KOZINSKI Judge, United States Court of Appeals, Ninth Circuit

It is popular in some circles to suppose that judicial decision making can be explained largely by frivolous factors, perhaps for example the relationship between what judges eat and what they decide. Answering questions about such relationships is quite simple: it is like being asked to write a scholarly essay on the snakes of Ireland: there are none.

But as far back as I can remember in law school, the notion was advanced with some vigor that judicial decision making is a farce. Under this theory, what judges do is glance at a case and decide who should win, and they do this on the basis of their digestion (or how they slept the night before or some other variety of personal factors). If the judge has a good breakfast and a good night's sleep, he might feel lenient and jolly, and sympathize with the downtrodden. If he had indigestion or a bad night's sleep, he might be a grouch and take it out on the litigants. Of course, even judges can't make both sides lose; I know, I've tried. So a grouchy mood, the theory went, is likely to cause the judge to take it out on the litigant he least identifies with, usually the guy who got run over by the railroad or is being foreclosed on by the bank. This theory immodestly called itself Legal Realism.

Just to prove that even the silliest idea can be pursued to its illogical conclusion, Legal Realism spawned Critical Legal Studies. As I understand this so-called theory, the notion is that because legal rules don't mean much anyway, and judges can reach any result they wish by invoking the right incantation, they should engraft their own political philosophy onto the decision-making process and use their power to change the way our society works. So, if you accept that what a judge has for breakfast affects his decisions that day, judges should be encouraged to have a consistent diet so their decisions will consistently favor one set of litigants over the other.

-71-

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