OrinKerr.com

When District Court Judges Use “We”

I always find it a bit puzzling when district court judges — who decide cases themselves, without a panel of colleagues– refer to themselves as “we” in an opinion. I can understand the universal “we” in the context of an appellate panel; the “we” refers to the multiple judges in the majority. But who is the “we” in the context of a single-judge opinion? Is that supposed to be the judge and his judge friends? The judge and his law clerk? I suppose “we” sounds more oracular than just “I,” but it still seems odd to see it in an opinion by a single judge.

UPDATE: In the comment thread, some readers suggest that district court judges properly use “we” because their rulings are understood to be rulings of the entire Court as an institution. This is a possibility, but I’m not sure the argument works. First, individual judges who are members of the same Court can disagree on an issue, so one judge’s ruling isn’t necessarily the view of other judges. Second, I don’t think I have ever heard a single trial judge use “we” when making a ruling from the bench in open court. In my experience, at least, judges in court usually are comfortable with using “I” when making oral rulings; it’s the switch from oral to written decisions that seems to trigger the occasional switch from “I” to “we.”

I think it’s also worth noting that a lot of legal scholars try to avoid the first-person altogether on the ground that it seems less authoritative. So where you might write “In this article, I argue that the moon is made of green cheese,” some authors (and lots and lots of law review editors) will want to change that to “This article argues that the moon is made of green cheese.” I usually try to resist this, as I prefer my writing to be as direct and honest as possible. The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes. So I would rather just say “I.” But I’m probably in the minority. Er, rather, the view stated in the preceding sentences is probably in the minority.