Precedent and Respect

When ― if ever ― can lower courts criticise their hierarchical superiors?

When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.

For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that

When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)

Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)

This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)

Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.

Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)


For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.

It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.

That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. In my view that was a mistake.)

Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.

So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.

Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.

That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.

The Economics of Unanimity

It is often thought that judicial unanimity is a valuable commodity. Chief Justices bang heads, twist arms, and break legs in order to get their courts to produce more of it, but they don’t always succeed, and unanimity remains at least somewhat scarce on the U.S. and Canadian Supreme Courts (although more on the former than on the latter, which has been unanimous in judgment in between two thirds and three quarters of its decisions rendered since 2010). The unusually high output of the unanimity production line at the US Supreme Court this year has produced much commentary. But how much do we really know about the economics of unanimity? What is it worth? More precisely, what is its purchasing power? How much does it cost? And is the cost worth what you get in return?

In the New York Times, Adam Liptak reviews some academic attempts to answer these questions (in the American context), including a recent paper by Cass Sunstein. The takeaway from this literature seems to be that unanimity is worth less than is commonly assumed. Mr. Liptak notes that people, including judges, often think that “[t]he public may be less likely to accept and follow decisions that would have gone the other way with the switch of a single vote.” Yet experiments ― and perhaps even historical experience ― do not bear out this intuition. And while another claim about the value of unanimity, that unanimous judgments are less likely to be reversed, is apparently supported by the facts, the number of overturned decisions is so small to begin with that this value is more illusory than real. Finally, although unanimous judgments might in theory make for a clearer legal landscape, they often fail to deliver on this promise too. Mr. Liptak points out that

Supreme Court opinions are the product of negotiation and compromise, which is why they can read as if written by a committee. A nine-member committee does not seem likely to produce crisper prose than a five-member one.

At the Volokh Conspiracy, Jonathan Adler chimes in, writing that

[t]he cost of broad agreement may be an opinion that speaks in generalities and pushes aside the potential points of disagreement.  Concurrences and dissents often draw clearer lines and are more analytically coherent than majority opinions. The sorts of opinions that result from efforts to achieve greater unanimity are different from those that merely seek the median vote.

At the same time, coalescing around a narrow holding allows the Court to avoid premature resolution of a potentially divisive question, perhaps leaving it to be resolved when it can be resolved in a unanimous way or even putting it off indefinitely.  This is itself a virtue of judicial minimalism, according to some.

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These are useful observations, so far as they go, but I think some additional clarifications are necessary for us better to assess the value (or lack thereof) of unanimity.

For one thing, we need to be clearer about what it is that we are talking about. Unanimity in judgment does not necessarily mean unanimity in reasoning, and indeed in some of the recent decisions of the U.S. Supreme Court (for example in NLRB v. Noel Canning, a case considering the constitutionality of President Obama’s “recess appointments”) unanimous judgment masks sharp disagreements about the law between a majority and a concurrence. In such cases, it seems unreasonable to expect the putative effects of unanimity, whether positive or negative, to manifest themselves.

For another, even unanimity in opinion can be of different sorts. While some unanimous decisions will indeed be the products of laboured compromise, and thus be likely to exhibit the flaws described by Mr. Liptak and prof. Adler, others are in fact the products of genuine agreement about the legal principles involved and their application. Probably most decisions of intermediate appellate courts (which have unanimity rates much higher than Supreme Courts, both in the U.S. and in Canada) are of this sort, because they are rendered in “easy” cases where the law is relatively clear. Some decisions of Supreme Courts, at least, are of this sort too. I don’t know American law well enough to give examples, but they are plenty this side of the border ― among the more notable recent cases, Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, comes to mind. Of course, it might not be easy for external observers to distinguish unanimity of agreement from the unanimity of compromise (and a single decision might involve both), but it seems likely that the former sort is more valuable, at least for clarifying the law (though not if one values unanimity for requiring narrow rulings!) ― but also less susceptible of deliberate manufacture by a court.

As for the value of unanimity as a means of exchange for acquiring legitimacy, I wonder whether an inquiry into the value “ordinary” people attach to it is the relevant one. The issue here does not concern unanimity alone. Rather, given well-documented and pervasive political ignorance, I wonder how much people outside the legal and political communities notice and care about judicial decisions at all, and to the extent that they do, how much their views of these decisions are influenced by what politicians (and perhaps experts) tell them. It is possible, and indeed likely, that the perceived legitimacy of the vast majority of, and perhaps of all, judicial decisions depends on the opinions of a certain class of journalists, lawyers, and politicians. If that is so, then an empirical assessment of the value of unanimity should look at the views of such people, and not of random citizens.

Finally, we might need a fuller picture of the transaction costs involved in achieving unanimity. Presumably, producing a decision that is unanimous in reasoning ― at least when unanimity of of compromise rather than of agreement is involved ― takes time and effort, which might, in theory, otherwise be expended on producing better decisions in other cases. It also, by definition, requires individual judges to sacrifice the opportunity to implement or even express their views about the law, and prevents disagreement from being aired in the open. It seems at least plausible that this will, for lack of a better term, undermine the morale of the court or at least of the more independent (or headstrong) judges. I don’t know, I’m afraid, whether this is a real problem (perhaps readers who have clerked at the Supreme Court can tell!). Judges surely know that they sometimes need to “take one for the team”, though nobody, I imagine, like to have to do that very often. In any case, the possibility is worth considering.

All that to say that, as with other commodities, unanimity doesn’t have any “true” value. How much it costs and what it can buy depends on a number of contextual factors. A quest, or demands, for unanimity that ignore these factors will likely be misguided, and perhaps pernicious.

Says Who?

Exposing the secrets of the powerful is all the rage. And there are different ways of doing that, not all of them involving spending weeks in the transit zone of the Sheremetyevo Airport. As a fascinating recent paper shows, one of these more comfortable ways involves analyzing the language of judicial opinions in order to deduce the authorship of opinions not attributed to one judge in particular, which courts, for a variety of reasons, prefer not to reveal.

The analysis is done by running a large number of judicial opinions of which the author is known through an algorithm that identifies the patterns in the use of words and short phrases by each judge. (In the lingo, these words and phrases are known as n-grams.) The algorithm is then able to analyze similar patterns in an additional opinion and to identify, among the judges whose language it has previously studied, the opinion’s most likely author. (It all seems rather more complicated than I’ve made it sound. But I doubt that I can summarize the technical details effectively and usefully. If you care for them, just have a look at the paper ― it’s not very long.)

As with all secret-piercing endeavours though, the ‘what for’ question is arguably more important than the ‘how’. The paper’s authors offer some thoughts on it, which mostly come down to the idea that knowing the author of a judicial opinion is important if judges are to be held accountable. They cite Thomas Jefferson and James Madison (in both cases, when they were Presidents) who criticized Chief Justice Marshall’s tendency to hide the true authorship of the decisions of the US Supreme Court (as well as the votes by which these decisions were arrived at). And they point out that, alarmingly in their view, some of the very important decisions of the US Supreme Court feature opinions that are attributed to the Court itself rather to specific judges. (These opinions are identified as being “per Curiam” even though there may also be concurring and even dissenting opinions.)

If they are right, we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. For over 30 years, it has had the habit of issuing opinions “by the Court” in the most important and controversial cases. (It is worth noting that, unlike in the United States, an opinion will only be identified as that of the Court if it is unanimous. But even when the court is unanimous, the usual practice is for it say that its judgment is delivered by a specific judge, the author of the sole opinion. The cases I am talking about name the Court itself as the author.) These cases include, among others, the Senate Reference, which prevented unilateral reform of the Senate by the Trudeau government; the Manitoba Language Rights Reference striking down ― and keeping alive ― all of Manitoba’s laws for almost a century; the Secession Reference, which set out the conditions under which Québec may legally separate from Canada; Khadr II,  declaring that Canada violated Omar Khadr’s constitutional rights, but refusing to order the government to request his re-patriation from Guantanamo; and, most recently (if memory serves well), the Securities Reference, which prevented the setting-up of a federal securities regulator. We can also add to this list the Patriation Reference, in which the two majority opinions (one on the constitutionality of unilateral patriation of the constitution as a matter of law, the other on its constitutionality as a matter of convention) were signed by seven and six judges respectively, not all of whom contributed to their writing in equal measure. And I think it’s a pretty safe bet that when the decision on the constitutionality of the proposed Senate reform is released, it will feature a single opinion signed by “the Court.”

But are such opinions really as bad as the study’s authors suggest?  Do they suffer from “poor quality … , evasion of difficult issues, lack of transparency to the public” (508)? I cannot say anything about the American situation, but in Canada, I believe that the opinions of “the Court” are no worse than signed opinions. The Manitoba Reference is, in my view, among the Court’s best and most brilliant decisions; the Secession Reference and the recent Securities Reference are very solid too. (I know many people will disagree about the Securities Reference, but the copious criticism it has been met with is invariably based on considerations of policy, not law.) Khadr is a more problematic decision, in which the Supreme Court is arguably guilty of “evasion of difficult issues,” but it was taken in the context of the government’s thinly veiled threats to disobey the Court, and it just might have been the best outcome possible under those circumstances. Khadr also illustrates the raison d’être of the opinions “by the Court” ― they allow the Supreme Court to speak as an institution, to demonstrate solidarity in the face of hostility, real or apprehended, of the executive and the legislative branches of government. In this way, they serve the Rule of Law more than they detract from it.

Despite all that, it is simply very tempting to find out whatever it is that we do not know; all the more so if someone is deliberately keeping the knowledge from us. The mixture of incorrigible human curiosity and unreflecting search for transparency mean that any secret that can be exposed eventually will be. As Isaac Asimov put it in a short story, “The Dead Past” (which I discussed here), “[h]appy goldfish bowl to you, to me, to everyone.” That includes, I suppose, the authors of the study. The seven of them, presumably, didn’t all actually write the article. I wonder if they’d be happy for someone else to use their methods on it to find out who did.

H/T Josh Blackman.