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An important dimension of judicial decisions little studied by social scientists is the scope of a court's opinion. Traditional political science studies of judging emphasize the political valence of judicial opinions but do not address the scope with which commands or proclamations are issued. The valence of an opinion is, however, theoretically orthogonal to the scope of an opinion. Differences in the manner in which opinions are written may reflect deep differences in the ways that individual judges understand the causes of human behavior and their own ability to predict behavior and influence it through court action. These deep differences involve what psychologists broadly refer to as variations in “cognitive style,” a psychological construct that has been operationalized in a variety of ways to refer to individuals’ consistent ways of perceiving stimuli, processing information, and thinking about problems. We discuss the importance of cognitive style for understanding judicial behavior.

By looking at the decisions of the United States Supreme Court, this chapter argues that what characterises American judicial discourse is precisely the fact it integrates its formalist and its policy-oriented discourses in a single discursive space: the judicial opinion. This characteristic American discursive integration is illustrated by analysing two particularly clear and recurrent series of examples: Supreme Court decisions that establish and apply multi-pronged judicial tests, and those that engage in ‘plain meaning’ judicial debates. This chapter examines the discursive mechanisms by which American judicial argument integrates or fuses its more formalist and its more policy-oriented discourses in the single space of the judicial opinion, and presents the significant argumentative tensions and distrust that are produced by this somewhat forced discursive coexistence. U.S. Supreme Court opinions almost never use either the term ‘formalism’ or the term ‘policy’ except to denounce them as inappropriate modes of judicial interpretation. American judicial discourse therefore walks a narrow argumentative tightrope: it must simultaneously promote and critique the two modes of discourse that it deploys side-by-side in its judicial opinions.

This chapter analyses the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice based on a couple of clear and concise comparative theses. These theses place the judicial argumentation of the three courts on sliding scales of greater or lesser interpretive formality or open-endedness, and of greater or lesser public disclosure of their controlling arguments and reasoning. Somewhere between the formalism of the official French judicial syllogism and the more pragmatic, open-ended, and purpose/policy oriented American judicial opinions are to be found the official judicial decisions of the ECJ. It seems to make more sense to classify ECJ decisions as more formalist than U.S. Supreme Court decisions, and this for one primary reason. Despite the fact that divisive interpretive disagreement lies visible on or just below the surface of the ECJ decision, the ECJ's response to that disagreement remains perfectly univocal and rather deductive in form, and distinctly magisterial and authoritative in tone.

This chapter presents the oral histories of judges regarding judicial opinions. The courts of appeal are charged with the task of reviewing the decisions of the lower district courts and use the judicial opinion as the exclusive tool of setting precedent, although only a small percentage of cases actually set precedent, with the rest having only marginal utility. A major issue that the courts of appeal struggle with is exactly which of their opinions they should publish. They also struggle with the issues of style and the process of composition. For district judges, there is the issue of how they feel when they get their decisions reversed by the circuit court of appeals.

This chapter considers the relation between judicial decisions and judicial opinions — more specifically, the question whether opinions are necessary or dispensable, and what light that question throws on the question of the relations between law and justice. It then looks at the relations between law and morality.

This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.

The indifference of justices, both to the harm they inflict on constitutional stature and to the opportunities they have to enhance their legitimacy by honoring stature, can run deep. This chapter analyzes troubling features of Chief Justice Roberts's plurality opinion in Parents Involved in Community Schools v. Seattle School District No.1 and the majority opinion in Citizens United v. Federal Election Commission. The Parents Involved plurality opinion repeats previously discussed failures to satisfy the harm-avoidance obligation which are evident in earlier decisions such as Bowers v. Hardwick. The plurality opinion also reveals an indifference to harm-amelioration obligations. The adamant refusal in Citizens United to acknowledge important differences between corporations and citizens is disquieting confirmation of previous arguments that some justices may not highly value the constitutional stature of citizens.

This chapter explains that casebooks no longer teach students to read judicial opinions. Instead, they offer highly edited excerpts of opinions, which are arranged to convey the same sort of information one might find in a treatise. But students only learn how to make legal arguments by reading opinions in their original form. Law is a way of thinking, arguing, and persuading. None of this is conveyed in the modern casebook.

In rights disputes, justices who call a loser's constitutional stature into question inflict significant harm. This chapter argues that we would be well advised to think more deeply about the reasonable equality and consent expectations linked to constitutional stature. If we fully understand the traits and capabilities with which each of us, as a citizen, is presumptively endowed, we will be able to articulate reasons for the special outrage we sometimes experience as a constitutional loser. Only then will we be prepared to offer practical suggestions for ensuring that judicial opinions do not inflict double losses on losing stakeholders.

This chapter explains that casebooks no longer teach students to read judicial opinions. Instead, they offer highly edited excerpts of opinions, which are arranged to convey the same sort of information one might find in a treatise. But students only learn how to make legal arguments by reading opinions in their original form. Law is a way of thinking, arguing, and persuading. None of this is conveyed in the modern casebook.

In Kesavananda Bharati v. State of Kerala, the Indian Supreme Court announced the basic structure doctrine, but it fell to later decisions to elaborate on the nature and character of basic features and to specify the mode by which they may be identified. At various points the Court has suggested that democracy, secularism, rule of law, federalism, judicial review, separation of powers, among others, are basic features of the Constitution. A first step to clarify the identity of basic features of the Constitution is to scrutinize the important judicial opinions in several cases such as Indira Gandhi v. Raj Narain, as well as the early speculations in Kesavananda, in order to identify the main arguments and concerns about the basic features of the Constitution. This chapter argues that the basic structure doctrine seeks to identify ‘basic features’ of the constitution, as distinguished from core articles or ‘integral’ parts of it. It also contends that the Supreme Court is right to refuse to provide an exhaustive catalogue of basic features in a legislative mode.

Honoring constitutional stature and ameliorating harms inherent in losing a rights dispute requires more from justices than a mere refusal to attack constitutional stature. Honoring constitutional stature requires affirmative acts. The previous chapter argued that justices might consider writing opinions containing the elements of a valid apology if they wish to honor losers' constitutional stature and ameliorate the harms done to them. This chapter sets forth four specific recommendations compatible with that argument. The first recommendation is that justices abandon the convention of relying on dissenting opinions to explain fully losers' interests and values. A second recommendation is that justices must accept responsibility for inflicting harm on constitutional losers. A third recommendation, which is closely related to the second, is that justices should convey humility in their opinions. Finally, opinions capable of restoring a proper relationship between justices and constitutional losers who suffer harm must be written with an understanding that language has the power not only to persuade but also to cause harm. Thus, justices should not only use words precisely and with an understanding of their nuances; they should also know how to speak in a manner suited to their relationship with and obligations to citizen stakeholders in rights disputes.

This chapter examines the significance of Mapp v. Ohio. Mapp was the first decision to interpret the Due Process Clause to impose on the states the same substantive constitutional criminal procedure standards that are imposed on the federal government. Once the Warren Court took this significant step, it “signaled the beginning of a due process revolution that was to transform the rules of state law enforcement and criminal procedure and provoke the [ ] protest [of the late 1960s] that the Supreme Court [was] coddling criminals and handcuffing the police.” After Mapp finally applied the Fourth Amendment to the states, the Court would inevitably also make the Self-Incrimination Clause of the Fifth Amendment and the Right to Counsel Clause of the Sixth Amendment applicable to the states. Ultimately, the Warren Court would “bring almost the entire range of state police action within the detailed control of the Federal judiciary.” However, as important as Mapp was in 1961, it would meet its demise less than two decades after it was decided with the judicial retrenchment of the conservative justices of the Burger and Rehnquist Courts.

The effect of Weeks and Silverthorne Lumber was that evidence obtained from an unreasonable search and seizure could not be used in a federal prosecution. This judgment—that the exclusionary rule is part and parcel of the protection provided by the Fourth Amendment—would go unchallenged for nearly thirty years. The Weeks–Silverthorne Lumber interpretation of the amendment, however, vanished with the 1949 ruling in Wolf v. Colorado. This chapter examines Wolf v. Colorado and Felix Frankfurter's opinion in the case. After Wolf, a majority of the Court would never again embrace the Weeks–Silverthorne Lumber conclusion that the Fourth Amendment mandates the exclusion of evidence acquired through unreasonable searches and seizures.

This chapter explains that an opinion combines elements of reporting, history, logical deduction, and persuasion. The opinion weaves all of these elements together into a single narrative. Readers are convinced by that narrative if it makes contact with a readily available normative perspective on ourselves and our community. The opinion must make sense of the law as something we are doing together, which means it must make sense given everything else we believe. It persuades us when it chooses a narrative frame that we recognize as one that we might use.

This chapter illustrates what it means to be a member of the Japanese judiciary using a fictional character known as Judge Tanaka. Tanaka, an invention of the author, is based on a combination of facts from the literature and countless interactions over the last two decades with Japanese judges, lawyers, and prosecutors. It details Tanaka's education, family life, and career path. It then considers how a judge's training and career path might affect both the way he writes opinions and the way in which he views the world. It identifies the institutional influences and pressures that judges are subjected to. The analysis reveals that Japanese judges sometimes can be oblivious to the assumptions that underlie their prose.

This chapter explains that an opinion combines elements of reporting, history, logical deduction, and persuasion. The opinion weaves all of these elements together into a single narrative. Readers are convinced by that narrative if it makes contact with a readily available normative perspective on ourselves and our community. The opinion must make sense of the law as something we are doing together, which means it must make sense given everything else we believe. It persuades us when it chooses a narrative frame that we recognize as one that we might use.

This chapter offers examples of rights decisions in which justices' harmful assertions about the losers' constitutional stature were so intertwined with the analysis of the merits of the dispute that the legitimacy of the decision is in doubt. These include the 1986 decision, Bowers v. Hardwick, and the more recent 2007 Roberts Court decision, Gonzales v. Carhart.

This chapter focuses on how the appointment of Warren E. Burger as Chief Justice of the United States led to the significant curtailment of the scope of the exclusionary rule. It addresses the question of why the Court did not abolish the rule outright, since eliminating the exclusionary rule was one of the goals of Chief Justice Burger.