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Judges are supposed to vary their diction and use colorful language, whereas legislative drafters are advised to do just the opposite. Imagine that legislative drafters received the same kind of advice: to write in a way that will “entice the reader into reading” the statute, from “start to finish.” Instead, the literature on legislative writing instructs drafters to write in a scientific and formulaic style. On this view, opinion writing is a kind of literary task, and well-written judicial opinions have much in common with good poetry or fiction. What makes for a well-written judicial opinion? How should we evaluate an opinion’s style? As others have noted, “there is no clear standard for a ‘better’ opinion and no obvious way to test for opinion quality.” Many commentators suggest that opinions should be lively, engaging, and appealing judges are supposed to shape facts into compelling and memorable narratives. The Relationship Between Judicial Functions and Opinion Properties The Role of Judges and the Point of Opinions I argue, accordingly, that judges should exercise greater rhetorical restraint, and I describe what this kind of restraint would look like and propose possible mechanisms for fostering it. This Article suggests that the kind of colorful and aesthetically pleasing judicial writing style that commentators widely encourage, and that many judges adopt, makes for professionally irresponsible opinions. We should be concerned about this kind of judicial discretion because judges exercise it in ways that undermine the integrity of the judicial role and compromise the legitimacy of opinions, courts, and the adjudicative process. Not only are judges permitted to use opinion writing as a means of self-expression and individuation, but they are also widely encouraged to do so. And many judges take care to develop and maintain their own distinct, personal styles through their judicial opinions. Some regularly include legally irrelevant details about litigants, with no apparent purpose other than to create an engaging or emotionally satisfying narrative.
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Some judges write conversationally and in a jocular tone, others formally and solemnly. In the United States, the style of judicial opinions is subject to little formal constraint, and judges exercise sweeping rhetorical discretion in their opinion writing.
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