Diary

Entry 2

I sat yesterday. That is, I sat in court, with two other judges, hearing lawyers argue their appeals, and peppering them with questions. (The lawyers’ briefs answer the questions they think we’re interested in.) We heard six cases in about three hours and then had a conference (in private, of course) at which we discussed the cases and took a tentative vote on each, and I, as the presiding judge, assigned each of us two cases to prepare the court’s opinion in. I am not allowed to disclose our view of the cases, but I can tell you briefly what they were about, to give you a sense of the federal appellate docket these days. The first case we heard was an employment discrimination case in which the question, very much a technical lawyer’s question, was whether a state law requiring the employer to furnish certain information to its employees had consequences for the federal suit. The second case involved a squabble over, of all things, hydroelectric power in Illinois. In Illinois? The state is as flat as a pancake, and I had thought that hydroelectric power meant water falling from a height and turning turbines. But it turns out that we have a number of little hydroelectric plants being powered by our little sluggish rivers, or in this case a canal whose wall, alas, had collapsed, blocking the flow. (Fortunately the plant, built back in 1912, isn’t operational, though its owner hopes to rehabilitate it.) Then we heard a case involving a dispute over who owned a computer program (the dispute turns on whether the program was a new product or a new version of an old product), and then a bankruptcy case in which the creditors were arguing that the debtor had declared bankruptcy for the dubious purpose of slowing up his own lawsuits against them. Then a criminal fraud case. And finally another employment discrimination case, in which a prison’s medical director, barred from entering the prison because she had given a soft drink to an inmate against regulations, was really the prison’s employee though formally employed by a health-care provider that had a contract with the prison.

Case No. 5, the criminal fraud case, happened to be the 4,000th case that I’d heard since becoming a judge 20 years ago. To say that all 4,000 cases have been interestingly different would be a bit of an exaggeration, but only a bit; that is what makes the job fun.

After the conference, a late lunch, and then a check of my e-mail, plus an important phone call—I am negotiating for the print of Dinah’s photograph that I mentioned yesterday. The e-mail flow is slow on weekends, and so surges on Monday. I am a seven-day-a-week person myself, but I am told there are people who do not do e-mail on weekends—probably the same people who don’t shave on weekends. I am always connected to one electronic medium or another, enabling me to maintain the frenetic modern pace without downtime. I am the kind of person who, some think, gives modernity a bad name. Against them I quote Tennyson:

How dull it is to pause, to make an end,
To rust unburnish’d, not to shine in use!
As tho’ to breathe were life!

After checking my e-mail, I drove home, arriving shortly before 3. Before 3, you (a taxpayer, I presume) say, 3 p.m.? Am I, you ask, some kind of Third World civil servant, working only half a day? Don’t worry. I came home early merely to write my opinion drafts in my two cases in a more tranquil atmosphere than that of the office. Well, and also to get a jolt from a very strong cup of espresso that I make. That carries me to about 11:30 p.m., and except for a dinner break, I work with increasing intensity until then. Then I spend 45 minutes on the treadmill (or a combination of the treadmill and weight lifting), then a shower, then flip a few channels, then, suffused with endorphins from exercise, to sleep.

I worked until almost 11 p.m. last night writing my two opinions from the morning and finishing up three others, and then I spent some time on my speech on civil liberties and national security for tomorrow (but I’ll ad-lib some of it), and only then did I complete this “Diary” entry, racing against the clock and breaking for the treadmill at 11:30 p.m.

I write opinion drafts quickly—that comes from having written more than 1,900—and they come out of the computer pretty rough. But I find that it’s better to get something down on paper fast than to brood and paw the earth over it to the point at which the writing looms as a great mountain to be climbed. I gave the drafts to my law clerks this morning, and they will make criticisms and do research and try to tie up the loose ends that I discovered in writing. I’ll revise and polish the drafts when I get their criticisms and the results of their research, and eventually I’ll have something that I can circulate to the other judges for their comments and, I hope, their approval.

This afternoon is my class and tonight my speech. I’ll tell you about these events tomorrow.