[The courts] may truly be said to have neither force nor will, but merely judgment….”
—Alexander Hamilton, Federalist no. 78
On behalf of our deserving and longsuffering client, my firm recently won reversal of a $5.1 million judgment that was given to a successor trustee on a missing promissory note. Missing, as in, the trustee had never seen it, and never even thought to look for it — though his predecessor did make off with at least $2 million in trust assets (not including later funneling cash to Liechtenstein and spending a night in jail for contempt). This resulted in much unplanned excitement at a trial that was supposed to be simply about whether and how much was owing on the note. The trial court largely ignored the fact the note was missing. The Court of Appeal seemed to have little trouble concluding that that wasn’t right, and sent it back for retrial.
We couldn’t be happier to see justice for our client — who had already paid the note before the former trustee sued him as part of her looting spree.
I won’t rehearse details here (though you can read a summary here), but it is taxing — to the client, certainly, but even to counsel — to await the correction of such a truly baseless decision. Everyone intuitively understands checks, governed by the same rule as notes, are rather useless in Xerox form, and it ought to be as obvious to a judge that ruling otherwise requires findings — and extraordinary findings at that. Supporting a judgment with findings is the essence of the judge’s power. The peculiar power of the Court – “hav[ing] neither FORCE nor WILL, but merely judgment” (Federalist #78) – must support itself, if at all, by prevailing upon reason.
For that matter, a case currently awaiting decision by the California Supreme Court goes to just this question: when a court omits findings, is the error reversible per se? Or must the appellant establish the error resulted in a “miscarriage of justice” as the state constitution generally requires? (Our appellate decision avoided this question by finding that the omissions were indeed prejudicial.) The answer seems a rather obvious “yes” from my vantage: in a bench trial, the judge steps into the empyrean role otherwise played by the jury, and thus a judge’s decision without findings is no less infirm than a sentence without a verdict. The very act of giving reasons helps ensure a decision is rooted in facts and law rather than subjective preferences. As Justice Cardozo wrote, a reviewing court “must know what [a] decision means before the duty becomes [the court’s] to say whether it is right or wrong.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (1935) 294 U.S. 499, 511.)
There are abiding reasons for requiring judges to explain themselves. It is captured, for one, in the very idea of a common law — a law that develops by way of a conversation taking place through judge’s considered opinions over time. And it is captured also in the very idea of the rule of law, particularly in the manner in which a judge’s decision — ostensibly affecting only the parties before it — also becomes, by ways mysterious, a generally accepted “law.” Just how is it that the resolution of a discrete dispute between two peculiar parties become “law”? And in the case of the U.S. Supreme Court, “law of the land”?
Abraham Lincoln’s first inaugural address touched on this. He defended his rejection of the ignominious decision in Dred Scott not merely because that decision was particularly evil, but because court decisions bind principally the parties before them — if they should travel further, they must pay their own freight, in the currency of decency and soundness of judgment, to the judicious mind of the public. To require any less, Lincoln held, would convert the courts’ peculiar power from merely judgment to FORCE, and WILL:
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
There are no factual comparisons to Dred Scott here, of course, but the same principle applies to both momentous civil-rights cases as to common commercial cases: A court cannot issue a judgment without reasons that have some purchase on the public mind. A historic struggle ensued to undo the damage of the Dred Scott decision’s impressive compilation of densely packed but ultimately sophistic reasoning. Would that it have simply ruled: “Because we said so,” undoing its work would have proved less burdensome.
But whether our courts offer up elaborate casuistry or terse ipse dixit to support their decisions, it is no less important to inveigh against it. Word play and edicts as substitutes for the exercise of giving reasons is not only an affront to due process, but an indulgence in an Orwellian destabilization of language. It is toward “the view,” in the words of Joseph Epstein, “of intellectual order as a form of oppression,” terminating, ultimately, in nihilism and despotism.
In awaiting the reversal, I experienced a glimpse of understanding — imagining: were the appellate court to hold that the rules may be suspended at whim, and without reason — this must be how minds, subjected in such ways to long periods of epistemic authoritarianism and obfuscation and doublethink, become lost.
Try this trick and spin it
Your head will collapse
But there’s nothing in it
And you’ll ask yourself
Where is my mind?
Fortunately, courts generally do supply reasons, given enough persistence. “Because I said so” should never be enough — even when reduced to a judgment. It is encouraging to remember that is still the case.
[show_avatar email=299 align=left]–Tim Kowal practices law in Orange County, California.