Remembering a Judge Who Wrote With Empathy

June 29, 2021, 8:00 AM

The nation has lost one of its finest and most respected jurists, Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit. As his former law clerk, this loss was also personal. Much has been written about Katzmann’s many contributions to immigrant representation, civic education, and the debate on statutory interpretation. But another of his many contributions that should not be overlooked was his approach to the craft of judicial opinion writing—and more specifically the empathy he displayed in his opinions.

As I learned first-hand, empathy was at the very core of Katzmann’s identity as a judge. A decorated scholar of interbranch relations, he took seriously the idea that the judicial system derives its power from the respect of the people in it and the support of the society around it.

Knowing that this faith in the judiciary could disappear if not nurtured, it was essential to him that any time anyone who interacted with or participated in the judicial system—and specifically anyone who read his opinions—should come away from the experience feeling respected and heard regardless of whether they had committed a crime or made a bad legal argument.

More than that, his opinions were never about elevating his own voice, they were always about helping the reader understand the judgment rendered and the legal basis for that decision.

Writing With Purpose

In this way, Katzmann’s opinions were unique. After all, we live in an age where judicial opinions are no longer hidden in bound reporters gathering dust on the shelves of law offices, but are instead shared instantaneously, excerpted on social media, and read by the population at large.

Because of the increasingly public nature of judicial opinions, there has also been a move to write opinions that are more accessible and, dare I say, more entertaining. As a result many opinions today are littered with pop culture references, puns, and even thinly veiled attacks added ostensibly in an effort to make the traditionally stilted legal language of judicial opinions more accessible and engaging. Yet these references too often come at the expense of the litigants, the lawyers, or even fellow judges. In fact, at times these opinions begin to resemble the acts of stand-up comics, more focused on landing a punch line or a turn of phrase than offering reasoned legal analysis.

Although his opinions were always accessible, Katzmann was never a part of this new school of legal writing. His opinions treated litigants, lawyers, and his fellow judges with the utmost respect and never as the butt of a joke. Even when he was reversing a judge or responding to a bad legal argument, he did so with kindness (rarely, if ever, referring to another judge by name and never belittling a lawyer even when eviscerating a particularly specious argument).

His opinions displayed precision, passion, and even indignation when necessary but they never resorted to hyperbole. His opinions centered the stories of, and practical repercussions for, the unsuccessful parties especially when those decisions were the result of legal rules that he believed to be unfair or unequally applied.

His opinions always articulated the losing position with as much detail and depth as the winning position. And his opinions always emphasized the “why” behind the decision without seeking to be too cute or too clever.

An Empathetic Approach for More Than 20 Years

Perhaps most impressive was the consistency with which he displayed this empathetic approach over the course of his more than 20 years on the federal bench.

For example, in his decision in Trump v. Vance, the case about the president’s refusal to turn over his tax returns pursuant to a subpoena, Katzmann did not take pot shots at President Trump or opine about the perceived reasons behind the litigation. Instead, he handled the issue in his always-detailed fashion with a comprehensive discussion of history and precedent—and the Supreme Court agreed with his decision by a 7-2 margin.

Similarly, in his opinion for the en banc Second Circuit in Zarda v. Altitude Express, holding that Title VII prohibits discrimination on the basis of sexual orientation, he did not rely on flowery language, quick turns of phrase, or biting retorts to those in dissent. Instead, his opinion walked systematically through the text and context of the relevant statute—and again the Supreme Court agreed with his decision, this time by a 6-3 margin.

As Georgetown Law Dean William Treanor said at the memorial service for Katzmann, he was a “judge’s judge.” The quality of his opinions was recognized by many. He sent numerous clerks to the Supreme Court who brought with them his reasoned, measured, and powerful approach to judicial writing.

And yet, what I hope his writing will be remembered for most is that it did not fall prey to the inclination to allow accessibility to come at the cost of empathy.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Jonah E. Perlin, a former law clerk to Judge Katzmann, is an Associate Professor of Law, Legal Practice at the Georgetown University Law Center.

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