Judicial opinions ought, on the one hand, to lead all genres in rigorously foregrounding doubt—confronting, weighing, vanquishing doubt in the pursuit of truth. Where else do we arrive at the legitimate narrative only after conducting a structured and thorough contest? On the other hand, judicial opinions can hardly afford to drop their façade of confidence altogether. No criminal defendant wants to hear a judge proclaim: “I’m putting you in jail because I believe the prosecution’s story slightly more than I believe yours.” Both the telling of the story and the judge’s subsequent reliance on that story to devise a ruling require a rhetoric of confidence. The mood of the judicial appellate opinion in its final moments is imperative, after all: The lower court’s decision is hereby affirmed or reversed; the underlying case is hereby dismissed or remanded for further action. And the affective tone of these opinions—both within their discursive and narrative passages—is correspondingly objective and detached; rational, rather than emotional.
Put another way, judicial narratives rise and fall on their claim to certainty. Expressions of epistemic modality—“possibly,” “may well have,” “might”—can disrupt the smooth surface of judicial authority and signal a stance on the narrative’s factuality: a form of narratorial visibility. Indeed, as David Herman argues about narratives more broadly, “narrative discourse exploits grammatical moods other than the indicative—and eo ipso the epistemic modalities affiliated with doubt—only at its peril.” Despite this, he proposes that “all narratives encode different degrees of certainty with respect to what is narrated” even as discourse at large does. As Mark Currie frames it: “Narrative has the power to stage the co-existence of doubt and certainty.”
How exactly judicial narratives stage that coexistence of doubt and certainty is the central concern of this chapter.