For an interesting article on the subject of judicial opinions increasingly being ghost-written by judges’ clerks, check out the column in the New York Times by William Domnarski, Judges Should Write Their Own Opinions, May 31, 2012 — click here . The problem is that judges are appointed to judge — to create the decisional law they prescribe for society. But on the other hand, the judicial workload has increased dramatically over the decades, and that makes it difficult, if not impossible, at least for most judges, to write all opinions they sign. But the problem is that however able their clerks may be, nobody appointed them to make judicial decisions, and as the late, lamented Robert S. Thompson of the California Court of Appeal put it, it is a bad idea to provide a publicly financed mechanism whereby weak judges are able to conceal the fact that “their” handiwork actually isn’t theirs.
We have written about some aspects of this problem and will have more to say presently. Suffice it to say for now that in the 1980s when the Supreme Court decided several important inverse condemnation cases, the Justices were filing some 150 opinions on the merits per term — a term being the nine months (October through June) when the court is in session and decides cases. Of course some work is being done on pending cases during the summer recess, but when it comes to opinion drafting, whether during the recess or the court’s term, the question is: who is doing the drafting, and to what extent do the clerks’ drafts represent the text of the final opinions that are eventually filed?
We are on the road at the moment, so we lack convenient access to some of the stuff that should be cited in this connection. We will attend to it in a few days by way of a follow-up to this post. In the meantime, do read Domnarski’s op-ed because it has some interesting things to say.