"An Unfortunate Truth"

In another entry in the long-running war in the West Virginia Supreme Court of Appeals, the Acting Chief Justice yesterday issued a concurring opinion defending his decision not to recuse himself in a matter and lamenting the state's judicial election process:

The opinions of the judge of a highest court of a state are no   place for intemperate denunciation of the judge's colleagues,   violent invective, attributings of bad motives to the majority of   the court, and insinuations of incompetence, negligence,   prejudice, or obtuseness of fellow members of the court.

Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 A.B.A. J. 794, 795   (1953). 

There is an important difference between a thoughtful, well-reasoned separate   opinion or order and one which is grounded in the political manipulation of legal doctrine;   and in the case of ensuring a stable, predictable and fair judicial system, that difference   matters.  Judges who use their opinions and orders simply as sensationalistic bombast by   which to convey partisan agendas or who pander to emotion rather than legal reason do a   disservice to the rule of law and to the institution they serve.

  It is a testament to the strength of our justice system that judges may disagree   and do so openly in separate opinions.  A well-reasoned and legally sound separate opinion   carries with it the opportunity for pointing out differences with the opinions of the other   members of the court without undermining public confidence in the judiciary.  Hon. Ruth   Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. Rev. 1185, 1196 (1992).  By   furthering positive progress in the development of law, a well-honed opinion serves as an   invaluable instructional tool to judges, lawyers, legal scholars, law students and even to a   judge's colleagues.  “[T]he effective judge . . . strives to persuade, and not to pontificate.   [He] speaks in 'a moderate and restrained' voice, engaging in a dialogue with, not a diatribe   against . . . [his] own colleagues.” Id. at 1186 (internal quotations omitted).  A separate   opinion should never “generate more heat than light,” but rather should “'stand on its own   footing,' . . . spell[ing] out differences without jeopardizing collegiality or public respect for   and confidence in the judiciary.” Id. at 1194, 1196 (internal quotations omitted).  

If the touchstone of a judicial system's fairness is actual justice, which I believe it is, its legitimacy is measured in actualities, not in the manipulation of appearances   or the vagaries of sensationalism.  Actual justice derives from actual impartiality in decision-making and is conveyed in well-written legal opinions which are founded in the rule of law   -- not in orders, opinions or public pronouncements by judicial officers reflecting   partisanship, contempt for other members of this Court, or their staff, bias toward or against   the parties, or a pre-judging of the issues.  

  It is an unfortunate truth that judicial officers in West Virginia must stand for   office in political elections.  Notwithstanding this political selection method, the public's confidence in our system of justice is necessarily undermined and the stability and   predictability of the rule of law is compromised when politics cross the threshold of our   Court.  The most important factors therefore affecting the public's perception of actual   justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases. 

By baiting emotions, I believe the Dissenting opinion adopts a distinctly “political voice” rather than a “judicial voice.” With due respect to my dissenting colleagues,   this case does not present a close call on the basis of the rule of law.  Because the Majority   decision possesses such a deep strength of legal authority, I do not believe that the Dissenting opinion in any way weakens the authority or substance of the Court's decision.

(Mike Frisch)