Justice Holmes, an icon of both the theory and the practice of the appellate judicial role, once famously said that the job of the judge is not to "do justice" but simply to apply the law. Along similar lines, law professors are forever reminding our students that when referring to judicial opinions, they ought to say that courts "hold" or "state" or "reason," but not that they "feel" or "believe." But, of course, judges are human, so we know that they do feel and believe things. They have convictions and commitments that are important to them, both personally and in their official capacities, both on and off the bench. While it is not commonplace, one does find statements of commitment to judicial conscience in judicial opinions. The research for this article, which focuses on the opinions of federal appellate judges, has yielded many examples of courts or individual judges who do feel compelled to "do justice" with reference to their conscientious commitments. They express openly and often act on these conscientious commitments, both professional and personal, in the decision- making process, whether or not the "just" outcome is actually available to them as a matter of law. This means that at times, as a matter of conscience, judges do speak out in official written opinions against the apparently straightforward application of established law. As might be expected, there are also opinions in which judges speak out specifically against such expressions of conscience, either as a matter of explaining what restrains that judge from saying more, or as a matter of questioning the propriety of a competing opinion in the same case. In practice, there is little clarity, and certainly less than perfect consensus, about this aspect of the appellate judicial role.
Sarah M. Cravens,
In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol51/iss1/8