Federal Judges, Weirdness

The Greatest Concurrence Ever? Maybe....

If brevity is the soul of wit, this one-sentence concurring opinion is very witty.

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Imagine you’re a federal appellate judge. One of your colleagues writes an opinion that you think reaches the proper outcome, but through a path that you would not have chosen. You would have written the opinion very differently, and you have some doubts about various aspects of your colleague’s reasoning.

In the genteel, collegiate world of appellate judging, it would be rude to try and rewrite your colleague’s opinion for him. Also, you agree (more or less) with the bottom-line result, and you don’t want to rock the boat. You just don’t want to be on the record as endorsing all of the analysis in this opinion.

What do you do? You write a concurrence like this one (via How Appealing):

CUDAHY, Circuit Judge, concurring.

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

And that’s all he wrote. This was Judge Richard Cudahy’s entire concurrence in an opinion written by Judge Richard Posner.

One can understand why perhaps Judge Cudahy didn’t want to sign on without qualification to Judge Posner’s entire opinion, which by federal appellate standards today is unorthodox (although vintage Posner, entirely consistent with the approach he advocates in his excellent Reflections On Judging (affiliate link)). Judge Posner’s opinion is conversational, pragmatic, unstructured, and not larded up with case citations. It cites just one statute and one case (and that case citation, cited for procedural history rather than doctrinal discussion, doesn’t really count). If you prefer more precedents in your opinions, you won’t like what Judge Posner did here.

Still, Judge Cudahy’s concurrence might have seemed a bit… weird. Well, when you’re 89 years old and have life tenure, you can do whatever the heck you please.

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As it turns out, there’s actually precedent for this type of half-hearted concurrence, as Professor Richard Re tweeted:

@howappealing Judge Cudahy should have written “dubitante”!

— Richard M. Re (@RichardMRe) June 2, 2015

“Dubitante,” according to Black’s Law Dictionary (affiliate link), is a term “placed in a law report next to a judge’s name, indicating that the judge doubted a legal point but was unwilling to state it was wrong.” It’s not widely used today, as noted by The Michigan Lawyer, but judges who have used it in recent years include high-profile and well-respected jurists like Judge Jeffrey Sutton of the Sixth Circuit and Judge Stephen Dillard of the Georgia Court of Appeals.

See, e.g., this dubitante opinion by Judge Dillard from 2012:

I concur because I cannot say with confidence that my colleagues on the panel are incorrect in the manner they have chosen to resolve the issues before us. But I do so with serious doubts. And if I were deciding this case alone, my reasoning and conclusions might differ from the majority’s in several material respects. That said, I am satisfied that my colleagues have carefully and seriously studied this case. Chief Judge Ellington has penned a thoughtful opinion in which Presiding Judge Phipps has fully concurred. I commend them both for the amount of time and effort they have exerted in resolving this difficult and important case. Unfortunately, our constitutional duty to resolve this appeal today (within two terms of docketing) precludes me from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right.

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If you reject legal realism and want to believe in a world of doctrinal perfection, then you might be disturbed by such expressions of judicial uncertainty. But for those of us who realize that judges are real people underneath their robes, this kind of candor is refreshing — without a doubt.

World Outreach Conference Center v. City of Chicago [U.S. Court of Appeals for the Seventh Circuit via How Appealing]
Word of the day: Dubitante [The Michigan Lawyer]
Georgia Court of Appeals’ November Term Ends [Georgia Appellate Developments / Smith, Gambrell & Russell]

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