Wednesday, April 25, 2012

Playing Nice When Concurring Rough

Professor Kerr offers his response to my post on the judge as moral arbiter. Frankly, I don't find much to disagree with. And much of that boils down to the simple point that while I don't have an intrinsic problem with opinions like Judge Brown's, this one in particular was poorly formed -- it was not exactly the shining moment for the genre.

I certainly did not mean to imply that judges should be intemperate or injudicious in their language. Obviously, judges (really, all of us) should strive to be polite and well-reasoned when making arguments, and perhaps judges in particular should be especially attentive to that virtue. To the extent that Judge Brown's opinion fails in that, it is deserving of criticism -- but that's a problem of rhetoric, and I don't see it as a necessary part of the type of opinion I'm defending.

I do think judges have the right to extend wide-ranging critiques of whole lines of doctrine, same as of individual cases. If the problem is that Judge Brown did not support her arguments with well-reasoned analysis, then I agree she should reason better or come up with more defensible policy beliefs. But I think Professor Kerr and I generally agree that tempered, well-mannered and well-reasoned judicial opinions that are designed to either guide legislators (or other judges) or prevent wrongful appropriation of moral credibility are permissible, and may often be salutary.

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