Passage A

Some legal theorists reject the notion that judges must believe what they say in their opinions. They argue that an emphasis on the need for honesty in judicial decision making ignores the myriad institutional considerations that judges must continuously balance in performing the prudential functions assigned to them. To argue for rigid adherence to a norm of sincerity is, they say, naive, foolhardy, and even dangerously utopian.

There are two ways of defending the principle of judicial sincerity. The first is to marshal prudential reasons that support the principle. If it can be shown that following a general rule favoring sincerity produces the most prudential outcomes—whatever those happen to be—then the rule is justified. Accordingly, proponents of greater candor in the courts have argued, for example, that transparent decision making provides better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy of the courts.

The problem with a prudential defense of judicial candor is that it fails to acknowledge the normative force behind the idea that judges should not lie or deliberately mislead in their opinions. In our ordinary moral thinking, duties of truth telling are not justified merely when they produce good outcomes. Rather, the duty to speak truthfully and openly is an independent constraint on our actions. This suggests a second way to defend the principle of judicial sincerity, namely, by appealing to moral principles rather than prudential considerations.

Passage B

The requirement that judges give reasons for their decisions—reasons that can be debated, attacked, and defended—serves a vital function in constraining the judiciary's exercise of power. But must judges actually believe the reasons they give? There are reasons to think so.

In the absence of any obligation to be candid, the constraints on judges’ powers would be greatly diluted, since judges who are free to distort or misstate the reasons for their actions can avoid the sanctions of criticism and condemnation that honest disclosure of their motivation may entail. In a sense, candor is an essential prerequisite of all other restraints on abuse of judicial power, for the limitations imposed by constitutions, statutes, and precedents count for little if judges feel free to believe one thing and say another. Moreover, lack of candor is likely to be detectable, and its detection would only serve to increase public cynicism about the judicial system.

Do these points demonstrate that candor is an unshakable obligation of judicial behavior? Do they rebut the argument that judicial deception is warranted in cases where it yields some net benefit? Probably not. But they do suggest that any cost-benefit calculus must take account of the large institutional losses that would result from a lack of trust in the honesty of judges and from an inability to debate and criticize the true reasons for their decisions. These points suffice to show that there is a strong presumption in favor of judicial candor.