Judge Richard Posner writes his own opinions — but not every judge is Judge Posner. (Photo by Chensiyuan via Wikimedia Commons.)
The vast majority of federal judges — as high as 95 percent, according to one study — delegate to their law clerks the task of drafting judicial opinions. In other words, most judges don’t write their own opinions; instead, they edit the work product of their law clerks, with varying degrees of intensity.
Is this a problem? Some say yes. Judge Richard Posner of the Seventh Circuit, well known for writing his own opinions, criticizes the practice of clerks drafting judicial opinions in his very interesting book, Reflections on Judging. See also Judges Should Write Their Own Opinions, a 2013 New York Times op-ed by lawyer William Domnarski (and author of, among other things, a forthcoming biography of Judge Posner).
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I respectfully dissent. There’s nothing wrong with judges delegating the task of drafting to their clerks — and, in fact, for most federal judges it’s the best way to work. If you’re interested in this subject, please check out the short essay I just wrote for the Vanderbilt Law Review, How Should a Judge Be: In Defense of the Judge as CEO.
How Should a Judge Be: In Defense of the Judge as CEO [Vanderbilt Law Review]
Judges Should Write Their Own Opinions [New York Times]
Reflections on Judging [Amazon (affiliate link)]
Richard Posner [Amazon (affiliate link)]
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].