Judicial Personality: Rhetoric and Emotion in Supreme Court Opinions

I. Introduction The Roosevelt Court and the Rehnquist Court, separated by half a ceantury, share a reputation for producing splintered decisions with strong concurrences and dissents by individualistic Justices. The members of the Roosevelt Court were the trailblazers, rejecting a long-established tradition that favored coensus opinions with limited disagreement and adopting instead a mode of decisionmaking that favored separate opinions by dissident Justices. Although subsequent Courts followed the Roosevelt Court model, it is the Rehnquist Court that has made separate opinions the hallmark of its practice. Linda Greenhouse's recent review of the Court's 2000 Term was aptly headlined The High Court and the Triumph of Discord.1 The transformation ofthe Court's jurisprudential tradition from consensus to discord has been accompanied by a shift in focus from the Court as a unitary institution to the Court as an assemblage of distinctive individuals. Just as they challenged the idea of decisionmaking by consensus, the Roosevelt Court Justices also challenged the norm of impersonal judicial prose. The leaders of the Court wrote their opinions in distinctive styles, from Felix Frankfurter's academic density to Robert Jackson's tart elegance and Hugo Black's homespun simplicity, that personalized their jurisprudence. As law clerks came to dominate the opinion writing practices of the Court, however, many Justices' opinions, even dissents and concurrences, took on the bland and featureless style of law review prose. On the Rehnquist Court only Antonin Scalia writes in an immediately recognizable style, but his colleagues have found other ways to personalize their opinions, sometimes by allowing powerful emotional responses to appear through their otherwise neutral prose. Court opinions personalized by style, content, or both, enliven the often dreary pages of the US. Reports, but they also raise difficult questions about the role of judicial personality in the decisionmaking process. In his influential essay Reason, Passion, and "The Progress of the Law," Justice Brennan challenged the idea that judges should speak only in the impersonal tones of a detached and dispassionate professional.2 Returning to Justice Cardozo's classic work The Nature of the Judicial Process,3 Brennan agreed with Cardozo that such impersonality is not possible and that judges inevitably infuse their work with elements of their own distinctive natures.4 Recognizing this, Brennan argued that we should acknowledge that "this internal dialogue of reason and passion" is essential to the "vitality" of the decisionmaking process.5 Although Cardozo also had recognized the effect of a judge's individual nature on the judicial process, he was less enthusiastic than Brennan. Cardozo regretted that "[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by"6 and affirmed a judicial responsibility to resist those subjective currents in favor of broader community standards. Like Brennan, though, he conceded that the myth of pure judicial impersonality was an "ideal ... beyond the reach of human faculties to attain."7 To acknowledge with Cardozo or to celebrate with Brennan the idea that the judge's individual nature is part of the judicial process is to suggest the related idea that even formal judicial prose can convey the personality of its author. The Justices of the Roosevelt and Rehnquist Courts illustrate this idea with the use of a variety of rhetorical strategies to contain their personal responses to the cases before them. …