Washington & Lee University School of Law Scholarly Commons
Abstract
Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author\u27s focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.
To support the author\u27s assertions, this Essay is divided into three Sections. Section I briefly discusses the elements of an Aristotelian ethos-based appeal and how such appeals are generally derived. Section II applies this approach to Supreme Court opinions and attempts to defend my formulation of apparent honesty. Finally, the author identifies friction points in Supreme Court decisions where there is a heightened danger of appearing less than fully honest. Given the harm failing to appear honest can have on the Court’s credibility, avoiding such an appearance is critical. The author asserts that there are at least three circumstances where the danger of appearing less than fully honest is increased. These three credibility “choke points” involve stare decisis, high-profile politically contentious cases, and changes in a Justice’s position
