Must Article III Courts Issue Explanations for their Orders?

 

Extract from: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481, 502 & n.53 (2016) (peer review), <http://ssrn.com/abstract=2646888>, <https://tinyurl.com/2p9efyek>. 

 

“The issuance of opinions by courts is a convention or tradition of the American judicial system, but such opinions are not mandated by the express text of Article III, by any federal statute, or even by any federal judicial decision.⁵³ In short, in the American judicial system, orders are primary, not opinions.” [Id. at 502 (footnote omitted).]

“See, e.g., Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 126 (2000) (‘The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment.’); Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1161 (2006) (‘An opinion cannot be central to dispute resolution because there is no requirement that an appellate court issue an opinion, and frequently such courts decide cases without any opinion.’ (emphasis added)); see also Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1327 (1996) (‘The President’s ordinary obligation to enforce a judgment extends only to the raw judgment itself: the finding of liability or nonliability and the specification of the remedy. That duty does not impose on the President any requirement in future cases to follow the reasoning that led to the court’s judgment or to extend the principles of that judgment beyond the issues and parties encompassed by it.’); id. at 1328 (‘[T]he issuance of opinions is not an essential aspect of the judicial power.’); cf. Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1187–88 (2012) (‘Suppose President Lincoln and President Nixon both believed the courts got the Constitution wrong. Must they nonetheless honor the courts’ decisions? If so, is any obligation limited to complying with specific orders, as Lincoln famously suggested, or must the executive more broadly follow the doctrines laid down by the courts?’ (citing Lincoln’s First Inaugural Address) (internal citation omitted)). But compare Lawson & Moore, supra at 1328 n.284 (suggesting that legal ‘requirements that judges give reasons for their conclusions . . . are therefore constitutionally questionable’), with Sullivan, supra at 1161 n.90 (explaining that under Federal Rule of Civil Procedure 52(a), federal district courts must ‘explain their decisions when they sit as the trier of fact,’ such as when a district court hears a case absent a jury). See generally Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 passim (1993).” [Id. at 502 n.53.] 

July 15, 2025: I might add that any duty or aspirational norm regarding a court of record putting forward an opinion or otherwise advancing a reasoned explanation for an order falls heaviest on final judgments, and only to a lesser extent on interim orders prior to a substantive review on the merits. It is not as if every trial court regularly produces (or even could produce) a written explanation in regard to every hearsay or other objection. Frequently, such courts merely rule and do not put forward any reasoning, even orally. And certainly, discovery orders, although sometimes issued as speaking orders, often come absent advancing any rationale for the relief granted and the relief denied. All this is well known to trial court practitioners, even if this issue is left somewhat unclear in academic casebooks reviewing primarily (or, perhaps, only) appellate caselaw.

Seth Barrett Tillman, ‘Must Article III Courts Issue Explanations for their Orders?,’ New Reform Club (July 15, 2025, 3:25 AM), <https://reformclub.blogspot.com/2025/07/must-article-iii-courts-issue.html>;