The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

J. Writing and Dissenting

Ruth Bader Ginsburg, appointed in 1980 to the United States Court of Appeals for the District of Columbia Circuit, is well known for her pioneering work on sex-based discrimination. She received an A.B. from Cornell University ( 1954), spent two years at Harvard Law School ( 1956- 1958) where she was an editor of the Law Review, and received the LL.B. from Columbia Law School ( 1959). She taught at Rutgers University School of Law for many years before being appointed Professor of Law at Columbia. In 1979, while at Columbia, she received the Outstanding Teacher of Law Award of the Society of American Law Teachers. She was selected for the Circuit Court bench by President Jimmy Carter. On June 14, 1993, she was nominated by President Bill Clinton to be an Associate Justice of the U.S. Supreme Court. The following article, "Remarks on Writing Separately," was published in 1990 ( 65Washington Law Review1).

Last summer I had the good fortune to be part of a small delegation to Paris, led by Supreme Court Justices Sandra Day O'Connor and Antonin Scalia. We assembled to exchange views with representatives of the Conseil d'Etat. The Conseil d'Etat is a marvelous, multi-function institution established in Napoleon's time;1 one of its main sections serves as the Supreme Court of France for administrative law cases.2 Early in our second session, Justice O'Connor described the doctrine current in the United States concerning the respect or deference courts owe to decisions or rules made by expert administrative agencies or officials. Courts are bound to accept an administrative agency's construction of the statute the agency is charged to enforce, Justice O'Connor reported, so long as the agency's reading is a plausible one, even if not the only plausible reading or, in the judge's view, the more or most plausible reading.3

How can that be, a French colleague asked. How can the law have more than one plausible meaning? Or, more accurately, how can a court judgment openly so acknowledge? The law is the law. There can be but one officially correct reading. Shouldn't judges, at least in their official pronouncements, make it

-171-

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The Responsible Judge: Readings in Judicial Ethics
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Preface xiii
  • Part I The Ideal Judge and the Partial Judge 1
  • A. The Impartiality of God 3
  • B. The Mask of Impartiality 22
  • C. Monsters 35
  • D. Political Judges 50
  • Part II Judging 97
  • A. Waiting for the Litigants 105
  • B. Deciding on the Record 113
  • C. Adjudicating the Case at Hand 115
  • D. Creating a Precedent 121
  • E. Following the Rules Laid Down 129
  • F. Exercising Judgment 138
  • G. Preserving Proportion 142
  • H. Displaying Compassion 148
  • I. Deliberating with Colleagues 156
  • J. Writing and Dissenting 171
  • K. Judging in a Different Voice 188
  • L. Managing Public Institutions 208
  • M. Settling a Case 223
  • N. Blowing the Whistle? 243
  • O. Retaining One's Humanity 257
  • Part III Independent and Accountable 265
  • A. Proclaiming Independence 267
  • B. The Duty of Recusal 278
  • C. Forms of Accountability 309
  • Selected Bibliography 387
  • Index 391
  • About the Editors *
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