This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.
The first two Parts will demonstrate that there is a strong presumption for judicial disclosure and an even stronger one against insincerity. This Note accepts those presumptions, but only where the reasoning in question is legal. Thus, a judge should omit discussion of his reliance on extralegal considerations because: (a) the alternative asks too much of the judge; (b) disclosing extralegal reasoning risks leading other judges to believe that engaging in extralegal reasoning is normal and proper; (c) such disclosure is defiant and disrespectful to litigants and to the public; (d) disclosing extralegal reasoning risks legalizing that reasoning; and (e) such disclosure harms the judiciary’s legitimacy. Instead of disclosing his reliance on extralegal reasoning, the judge should justify his decisions with legal reasoning. This Note also discusses and defends against the criticisms that by omitting and justifying extralegal reasons, judges violate their own moral duties, the rights of litigants, and the rights of the public as a whole.
Eric D. Hageman,
Judicial Candor and Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More),
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol91/iss1/8