Passionate Opinions, Not Personal Attacks, Judges Tell Students

Wearing a judicial robe means often deciding contentious cases with some of the same people year after year, and for Judge David R. Stras, of the US Court of Appeals for the Eighth Circuit, doing that successfully means putting into practice the maxim “we can disagree without being disagreeable.”

Judges Stephanos Bibas of the Third Circuit, Robin S. Rosenbaum of the Eleventh Circuit, and Toby J. Heytens of the Fourth Circuit, agreed with Stras. The four judges spoke about the challenges of adjudicating cases during a panel on collegiality that was part of the annual William & Mary Law School Supreme Court term preview event Oct. 7.

The steps they take individually and those taken by their respective courts to maintain camaraderie and cooperation was a theme of the rare public conversation between four sitting circuit judges about how they do their work. For Stras, those steps include shooting down passive-aggressive language from law clerks in drafts or taking out language suggesting a fellow jurist’s work was inconsistent with their previous decisions.

“‘Your job is to keep me from ticking off my colleagues in the wrong way,’” Bibas said he tells his law clerks.

But, for the judges, maintaining respect and collegiality doesn’t mean avoiding discussion of differences on substantive legal questions. Justice Ruth Bader Ginsburg’s statement that Justice Antonin Scalia’s dissent in the Virginia Military Institute case ultimately made her landmark majority opinion “much better than the first draft,” came up early in the discussion.

“Vigorous disagreement is part of our job,” Bibas said. “It is right, though, that if we disagree vigorously on the substance part, we’re very careful to refrain from personal attacks.”

Separate Opinions

The judges gave a window into how they exercise discretion in deciding when to write separately from their colleagues. Rosenbaum—the most senior of the four and who has been on the Eleventh Circuit since 2014—said that writing a separate opinion is worthwhile when she wants to explain a novel legal theory or when she believes a decision in a significant case might be revisited by her court or another circuit.

“It’s important to me that whatever I’m writing is good and it has meaning,” Rosenbaum said, but “it’s just not physically possible to produce quality work product in every single case where you have some type of disagreement” especially considering doing so would mean work on top of the majority opinions already assigned during each sitting.

Heytens, who said he’s sometimes outvoted 2-1 on the Fourth Circuit where he has served since late 2021, noted he’s had more senior judges reach out after oral argument to ask if there was a way to get him to join the majority.

“And I’ve usually said ‘yes.’ That’s not always the case. But I definitely have some senior colleagues who care a lot about that,” and Heytens said he appreciated their effort.

It’s “better for the law,” Rosenbaum said, “if the court with different viewpoints can come to one decision everyone agrees on.”

The judges greatly emphasized to attendees the importance of listening and being respectful during their time in law school.

“Sometimes students are a little quick—maybe it’s youth—to dismiss what other people were saying,” Stras said. “We try very hard as judges not to do that.”

“You’re not going to agree with everything the other person says,” Rosenbaum concurred, “but there might be a grain of something there—that maybe, they’re right.”