Professor Justin Driver Argues Judicial Opinions Are Vastly Overrated

Professor Justin Driver’s recent article “The Insignificance of Judicial Opinions,” published in the California Law Review, challenges academia’s received wisdom regarding the centrality of judicial opinions and argues that bottom-line judicial decisions loom much larger than is commonly understood. 

The reasoning behind an opinion “forms the indispensable object of examination,” Driver writes, and is scrutinized by law students, lawyers, jurists, and academics for decades, and from every conceivable angle. But Driver says that for both the public and the legal community, “judicial rationales matter far, far less than is commonly asserted.”

“[T]his Essay contends not that judicial opinions are irrelevant, only that they are comparatively insignificant,” Driver writes. “Whereas opinions form the Court’s reasoning, decisions involve relatively bare, brass-tacks judgments. Despite frequent odes to opinions’ preeminence, it is the underlying decisions that should receive pride of place.”

Though comparatively brief at 18 pages long, the article has garnered attention from publications like The New York Times, as well as praise from University of Chicago Professor William Baude ’07 and attorney and podcast host Sarah Isgur of Advisory Opinions. In this Q&A, Driver takes a deeper dive into some of the article’s central arguments.

Your essay argues that what courts do matters more than the underlying judicial opinions. Why does the legal community focus so much on judicial opinions themselves?

I contend that the Supreme Court’s bottom-line decisions are dramatically more important than the reasoning contained in the accompanying opinions. That’s true in determining not merely how the public receives judicial decisions, I claim, but — more controversially — even in shaping whether the legal community extols or excoriates various decisions. Judicial opinions that can be viewed as shoddily reasoned, that is, are nevertheless venerated in constitutional classrooms.

Judicial opinions form the central object of scrutiny in contemporary American law schools. That is true for lots of reasons, not least because lawyers dispute the meaning of judicial opinions all day, every day. But we should eliminate the pretense that those disputes are driven in any material way by the intrinsic quality of the contested opinions.

What are the consequences in your view to valorizing judicial opinions too much?

Law professors should stop insisting to their students that decisions’ underlying rationales determine whether an outcome is accepted or rejected, either in the court of public opinion or even among legal sophisticates. For example, Griswold v. Connecticut’s rationale is quite literally a punchline at the Supreme Court. Indeed, Justice Thomas posted a sign in his chambers that admonishes, “Please don’t emanate in the penumbras.” That sign, of course, takes a swipe at a familiar line from Justice Douglas’s Griswold opinion: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Nevertheless, Griswold’s outcome is beyond dispute in American constitutional law, as Supreme Court nominees from across the ideological spectrum have repeatedly pledged allegiance to Griswold’s bottom line.

Relatedly, many law professors assert that Roe v. Wade would have been more broadly accepted if only the Court had relied upon the Fourteenth Amendment’s Equal Protection Clause. That argument, though, severely strains credulity and misapprehends the nature of objections to abortion. The Court’s subsequent decision in Planned Parenthood v. Casey, moreover, can be understood as hanging its hat on equal protection. I’m confident that precisely no one changed his or her mind about abortion’s constitutionality due to that shift in rationale.

In a similar vein, I suggest that Brown v. Board of Education’s revered position in our constitutional order is in no way owed to Chief Justice Warren’s opinion for the Court. Going further, the Supreme Court’s broad destruction of Jim Crow in the 1950s occurred on what nowadays might be termed the “shadow docket,” in that the Court issued decisions containing no reasoning whatsoever. Should we really deem Jim Crow’s dismantlement an ill-gotten gain? Count me skeptical. 

How do you approach teaching your students about judicial opinions?

Students hoping to avoid reading judicial opinions closely in my classes will be severely, bitterly disappointed. One of the skills that I can provide to my students is the ability to read judicial opinions with care, subtlety, and precision. That skill will, I hope, stand them in good stead whether they choose to practice law or to pursue another field.