JUDICIAL COLLEGIALITY

"Collegiality" is defined by Webster's Third New International Dictionary (1993) as "the relationship of colleagues." "Colleagues" are "associate[s] or co-worker[s] typically in a profession or a civil or ecclesiastical office and often of similar rank or state." The derivation, common with "college," is the Latin collegium, although a purist might refer to the verb legare, meaning to send or choose a deputy.

For a court, collegiality consists in the relationship among equals in rank, and usually carries positive connotations of cooperativeness and joint efforts toward achieving appropriate aims, operations, and functioning of the court as an institution.

Thus, there may be collegiality among, say, trial judges, even though it does not necessarily extend to decision-making on particular cases. Trial judges have basically monarchial power over their own courtrooms, even though they may work with their colleagues, for example, in accomplishing trial court aims or fashioning trial court rules. At the same time, they may consult with their trial court colleagues on matters that do affect particular cases; for example, sentences, jury instructions, admissibility of particular evidence, or the like. But it is a collegiality of a different kind from that of appellate judges.

Appellate judges need collegiality in order to decide particular cases. Sitting generally in groups or panels of three or more—usually an odd number—a joint, one hopes cooperative, effort is needed to decide cases; to decide whether to hear arguments or to write opinions or summary orders, as well as how to write them; to fashion relief to the parties; to give guidance to the trial courts or to the bar or to the public; and, in a difficult or complex case, simply to reach a workable result. Three judges can sometimes approach a case with different viewpoints, resulting in different outcomes, yet needing resolution. Something has to give in such a situation, and "collegiality" is what helps bring about resolution.

It may be best to define "collegiality" in terms of what tends to promote it and what tends to discourage it. Means of promotion include friendship, civility, intellectual respect, consideration, dialogue and communication, good humor, and shared meals and events. Thus, personal elements, communications, socialization, and court ceremonies all tend to further collegiality. As former Chief Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit put it recently, the term "collegiality" does not begin to capture "the subtle elements of respect, trust, cooperation, and accommodation that characterize members of a group court at work."

Discouraging collegiality follows from the contrary—geographic or social remoteness of the judges; the size of the court; or ill-feeling. One could add as examples of discouraging practices criticizing another's writing style; delegating opinion critiques to law clerks who are given free rein; or personalized attacks in opinions or memoranda on the motives or aims of other judges. But these examples are not inclusive.

Collegiality is an elusive concept. To borrow the description of obscenity of Justice potter j. stewart in his concurring opinion in jacobellus v. ohio (1964), we know it when we see it, but to define it is almost impossible. We do know that, without collegiality, courts tend to become politicized, angry, or lacking in civility. Indeed, without it the independence of judges that we try to maintain may be undermined, as public and political criticism of the courts is promoted.

James L. Oakes
(2000)