Emotion and the Discourse of Judging


Emotion and the Discourse of Judging



Emotion typically is both banished from legal discourse about judging and presumed to be absent within the discourse of judging. Traditional legal discourse about judging presumes a standard of ‘dispassion’, reflecting a normative judgement that judges should not feel emotion or allow any such feelings to affect their decisions.1 The discourse of judging has developed to satisfy that norm, such that judges often suppress or disguise the influence of emotion in their actions and words. Neither discourse creates adequate space for the reality of judicial emotion. Legal disputes operate within a territory shaped by the emotional experiences, commitments and dynamics of a large cast of characters—including judges. Further, legal disputes create emotional experiences, commitments and dynamics—including in judges. Our collective understanding of judicial decision-making therefore must openly account for emotion.

In this chapter I briefly explore two different angles on this theme: first, scholarly theory and commentary about the actual and proper role of emotion in judging; and second, evidence that emerges from the artifacts of judging, such as written decisions, media reports and personal accounts. The line between these two angles is not always sharp, as judges traditionally have been among the theorists promulgating the first level of discourse as well as those generating the second. It remains useful, though, in capturing the relationship between the ideas about the thing and the thing itself.

II.Emotion in Discourse About Judging

Traditionally, emotion has enjoyed two opposing characterisations in popular and scholarly discourse about judging. Either it is described as absent, which absence is a supposed marker of judicial competence, or its presence is noted as a supposed marker of judicial incompetence.

An early exemplar of the former characterisation may be found in Leviathan, in which Thomas Hobbes declared that the ideal judge is ‘divested of all fear, anger, hatred, love, and compassion’.2 His mid-1600s view was echoed some centuries later by the German scholar Karl Wurzel, who in the early 1900s classified ‘dispassionateness of the judge’ as a fundamental tenet of Western jurisprudence.3 Indeed, Wurzel wrote, lawyers were ‘the first and the most emphatic in insisting on the absence of emotional bias’, because ‘absence of emotion is a prerequisite of all scientific thinking’, and judges, more so than other scientific thinkers, regularly are ‘exposed … to emotional influences’.4 Even the decisional structures built into the US Constitution, such as the sharp separation of the judicial, executive and legislative branches, were meant to position judges as a bulwark against the perceived evils of emotion, particularly popular emotion.5 I have called this remarkably stable narrative the ‘persistent cultural script of judicial dispassion’.6

This script remains alive and well. It is true even today that to call a judge emotional is viewed as a sharp insult.7 A prominent commentator, for example, harshly criticised the late US Supreme Court Justice Harry Blackmun for his ‘legally unsophisticated and overly emotional … jurisprudence of sentiment’, characterised by ‘over-ripe, self-dramatizing’ and ‘purple’ prose. This jurisprudence, the author continued, rendered Blackmun a failure because ‘feeling deeply is not a substitute for arguing rigorously’, and because ‘a big heart and the capacity to feel pain are not enough for success on the Supreme Court’. He compared Blackmun with the late Justice Frank Murphy, who in the author’s view ‘wrote emotional dissents’ but ‘whose tendency to let his heart get the better of his head deprived him of lasting influence’.8

The script of dispassion enjoyed a recent resurgence in the United States during the 2009 hearings to confirm Sonia Sotomayor as a Justice of the US Supreme Court. President Obama expressed his intent to favour a candidate with ‘empathy’ and listed among Sotomayor’s qualifications her ‘sense of compassion’.9 The backlash was swift. Many senators (perhaps not coincidentally, those from the party opposed to President Obama) decried empathy as ‘touchy-feely stuff’,10 warned that judges were being invited to ignore law and rule on the basis of ‘personal … feelings’11 and insisted that the most critical judicial quality is ‘the capacity to set aside one’s own feelings so he or she can blindly and dispassionately administer equal justice for all’.12 This political response was strongly seconded in public discourse; a variety of commentators declared that ‘emotive judges’ are inclined to partiality,13 led astray by ‘passion’ that, unlike rational argument, is ‘inscrutable, idiosyncratic, and justified in and of itself’.14 Even Sotomayor’s defenders appeared to concede the point, as they defended empathy primarily on the grounds that it was a cognitive capacity to understand the experiences of others, not an emotion.15 Summing up the apparent weight of popular opinion, one critic wrote that ‘the compassionate, empathetic judge is very likely to be a bad judge’.16

Faced with this barrage of anti-emotion sentiment Sotomayor, too, largely conceded the point. ‘Judges can’t rely on what’s in their heart[s]’, she testified before the US Senate Judiciary Committee, because ‘[i]t’s not the heart that compels conclusions in cases, it’s the law’. Though she acknowledged that judges are ‘not robots [who] listen to evidence and don’t have feelings’, the only acceptable response—as she explained it—is ‘to recognize those feelings and put them aside’.17 Sotomayor mouthed the script, and whether she believed it or not all were (more or less) mollified. In the wake of the Sotomayor incident the idea that emotion might influence judging was characterised as ‘radioactive’,18 a must-to-avoid for subsequent judicial nominees.

The discourse lauding judicial dispassion has proven to be both persistent and culturally dominant. It has not, however, gone unchallenged. It has met with periodic dissents, some of which have altered the script and rendered it vulnerable to replacement.

Interestingly, from time to time legal systems have been structured so as to prefer, not suppress, certain manifestations of judicial emotion. While research on such script-defying moments is scarce, a few instances are worthy of mention. Looking to ancient times we may note the Babylonian Talmud’s disqualification of childless men from judging capital cases—which, at that time, included most criminal cases. That case-driven disqualification from the Sanhedrin was justified on the ground that the childless are ‘devoid of paternal tenderness’ and therefore would lack a desired level of sympathetic care for the human interests at stake—not just for the defendant’s life but also for the emotional lives of his parents.19 More recently, we have seen the invention of an entirely new kind of judge, one who would populate the early-twentieth century juvenile courts in the United States. The institution of a separate court for juveniles accused of criminal offences was an innovation that began in Chicago and quickly spread throughout the nation and world.20 One of the first juvenile court judges, Julian Mack, wrote movingly of the host of emotional qualities such a judge should possess, including a love of children and a ‘sympathetic spirit’.21 Such a judge, Mack wrote, would treat accused delinquents as would a ‘wise and merciful father’.

Though they are separated by several centuries, these narratives have much in common. In both narratives judges were asked to have the capacity for empathy, which was believed to spark compassion, which in turn was predicted to manifest in mercy. In neither narrative, however, was this empathic arc seen as critical for judging in the ordinary case. Sanhedrin judges hearing property and commercial cases could be childless; adult criminal court judges could be heartless. Indeed, the preference for compassionate judges was deeply instrumental. Fathers serving on the Sanhedrin would, it was thought, minimise imposition of capital punishment, consistent with elites’ preference to maintain the practice in name (believing themselves commanded by religious doctrine to do so) while eliminating it in practice. The fatherly juvenile court judge would protect young offenders from the harms regularly visited on adult offenders, and would instead deliver the rehabilitative product that the courts’ advocates believed preferable as a matter of public policy and child development. While these structures preferring particular emotional commitments from their judges stand in sharp contrast to the script of dispassion, the fact that they were somewhat of a specialty product prevented them from challenging the script at its core.

A more frontal challenge to the script was raised by the early-twentieth century Legal Realists. The Realists—a major jurisprudential force in the United States—challenged a great multitude of ways in which they believed that legal theory misrepresented law as objective and certain.22 One of the hidden contributors to law—both as written and as implemented—to which they called attention was emotion. As the great scholar and judge Benjamin Cardozo proposed, to engage fully with ‘what judges really do’ requires dialogue on the contrast between ‘reason versus emotion’23 and a more forthright acknowledgment of the latter. He wrote further that while most of judges’ conscious decisions could be attributed to recognised legal factors—such as respect for precedent and principles of statutory interpretation—that explanation was too shallow. Instead, he wrote: ‘Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge’.24 Cardozo’s was a particularly prominent voice in the Realist era, but it was far from the only one. A contemporary wrote that judge-made law ‘grows up in the semi-darkness of ignorance and emotion’ rather than ‘in the strong light of pure reason’.25 Another noted that judges were influenced by ‘sympathies they could not help but feel’, based on their life experiences;26 an example offered by yet another Realist thinker was a judge’s ‘known animosity’ towards a lawyer, which might affect his rulings.27

To a modern-day ear these assertions may seem entirely obvious, perhaps even banal. For insight into just how contrarian they were at the time, how in tension with acceptable discourse about judging, consider this account by Joseph Hutcheson, a federal trial judge. He wrote that he was prepared to be ‘stoned in the street’ for declaring that good judges, not just unavoidably human judges, rely on ‘feelings’ and ‘hunch’. As a young lawyer, in contrast, Hutcheson was so invested in a formalist view of law that

if anyone had suggested that the judge had a right to feel, or hunch out a new category into which to place relations under his investigation, I should have repudiated the suggestion as unscientific and unsound, while as to the judge who dared to do it, I should have cried, ‘Away with him!’.28

A similarly evangelical note was sounded by Jerome Frank. His iconoclastic Law and the Modern Mind,29 written a decade before he became a judge, made a particularly strong claim: in it he argued that lawyers and judges approached law with the ‘emotional attitudes of childhood’, characterised by longings for a stable, authoritarian father.30 This emotional drive fed a fantasy that certainty was possible and fuelled a concomitant need to insist on law’s objectivity, with the result that law was treated as a father substitute.31 Frank’s ideal judge was one emotionally ‘adult’ enough to reject the fantasy.32 Such a judge would not reject emotion itself, which Frank characterised as ‘a large component of a trial judge’s reaction’ to cases.33 Indeed, he disclaimed any ‘naïve notion’ that a judge without any ‘emotional attitudes’ exists, and declared bluntly that he had ‘no desire to live in a society in which such sub-human or super-human judges exercised the power of judging’.34

Compared with the specialty-product model presented by the Sanhedrin and juvenile court visions of judging, certainly the Realist embrace was far broader. In the Realist account emotion potentially reached into every corner of judging, in every court, in every case. But what the Realist account gained in breadth it lost in specificity. The Realists were never able to specify precisely what they meant by emotion, often clustering the concept together with intuition, hunch, bias and the workings of the subconscious. Nor were they able to describe exactly what they thought emotion’s influence to be. In Cardozo’s words, ‘[h]ow much of the process is to be classified as reasoning and how much as mere emotion, the students of juristic method have been unable to agree’.35 Finally, they seemed unable to decide whether that influence—whatever it might be—was a good or a bad thing. At one moment the Realists might enthusiastically embrace emotion and at others they might deride it as ‘spasmodic’36 or a ‘perverting influence’.37

These theoretical stumbling blocks seriously limited the Realists’ success in normalising dialogue about judicial emotion. Well into the post-Realist era the great Justice Felix Frankfurter echoed Hobbes in writing that a judge must ‘submerge private feeling on every aspect of a case’.38 But the Realists certainly had some impact. By articulating something so thoroughly and obviously true—judges have emotions and they matter—they shifted the discourse in a subtle but important way. In the post-Realist era it has become possible, even commonplace, to acknowledge that truth. As Justice Robert Jackson wrote in 1944, truly ‘dispassionate judges’ are ‘mythical beings’ like ‘Santa Claus or Uncle Sam or Easter bunnies’.39 We now expect judges to manage their inevitable emotions. Even Frankfurter did not deny private feeling; he rather denied it any power. As Jerome Frank wrote:

We cannot, if we would, get rid of emotions in the field of justice. The best we can hope for is that the emotions of the judge will become more sensitive, more nicely balanced, more subject to [the judge’s] own scrutiny, more capable of detailed articulation.40

Certainly, the way in which we expect judges to manage emotion remains heavily tainted by the script of dispassion. If the pre-Realist vision of the ‘good judge’ was of one who felt no emotion, the contemporary vision is of one who recognises her emotions and firmly puts them aside. This is, of course, precisely the script that Sotomayor delivered.

After the Legal Realists’ heyday the discourse on emotion in judging enjoyed a long slumber. It was reawakened by US Supreme Court Justice William J Brennan, who in a 1987 lecture praised Cardozo for having called attention to the ‘complex interplay of forces—rational and emotional, conscious and unconscious—by which no judge could remain unaffected’. Brennan declared that it was time to answer Cardozo’s largely-forgotten call for the vital ‘dialogue of reason and passion’ in judging.41 Brennan argued that though the idea of dispassionate judges once served a useful role in fostering early American democracy, in the modern era ‘the greatest threat to due process principles is formal reason severed from the insights of passion’.42 Passion—which he defined as ‘the range of emotional and intuitive responses to a given set of facts or arguments, responses which often speed into our consciousness far ahead of the lumbering syllogisms of reason’—does not ‘taint the judicial process, but is in fact central to its vitality’.43

Brennan’s vision, it appears, went a step further than Cardozo’s, in that he more aggressively and consistently embraced a positive role for emotion. In some respects, however, his vision was also much like that of the Sanhedrin and juvenile court models. While Brennan’s embrace of emotion had broad narrative sweep, his specific target was quite narrow; he advocated passion only in the context of judicial interpretation of due process claims made under the US Constitution. Further, he advocated passion in that domain for an instrumental purpose—avoiding a detached formalism that would tend to disfavour such claims—that he positioned against a disfavoured backdrop, a perceived trend towards an ‘alien’ and ‘sterile’ bureaucracy in which law was playing a part.44 Brennan may in fact have imagined a much more expansive role for judicial emotion but he did not offer it. Even after Brennan’s bold call, then, it remained unclear whether the claim was that emotion might offer something of value in judging generally.

Other scholars and judges have since more squarely made that claim. Judge Richard Posner, a prolific author on judicial decision-making, is perhaps the most prominent to have done so. Posner has sought to debunk the underlying fear of emotion as irrational by citing psychological and philosophical accounts; those accounts demonstrate that emotions are ‘triggered by information’, express ‘an evaluation of that information’ and motivate action.45 Posner therefore rejects the notion that judges should ‘be emotionless, like computers’, and takes it as a given that emotion ought to ‘enter into their judgments’ in some way46 and that good judging may even require emotion.47 Here the Posnerian account thins considerably. He suggests that cases presenting a ‘zone of reasonableness’, within which one may articulate multiple correct answers, admit of more emotional engagement than others48 and would benefit from judicial capacity to feel ‘empathy or fellow feeling’, particularly towards absent parties.49 Posner further proposes that judges have different emotional propensities and profiles; that they are professionally motivated to avoid shame and guilt by doing a good job; that emotion may operate differently on the trial and appellate courts; and that the decisions of multi-judge courts (such as appellate panels in the United States) are influenced by emotional dynamics among the participants.50 Most controversially—and most reminiscent of Brennan’s vision—Posner asserts that emotion reveals legally relevant moral truths towards which judges cannot reason.51 Thus, he claims, if a law sanctioning a moral violation with ‘no plausible social-functional justification’ were ‘challenged before an emotionless judge’ he would be unable to muster a rational justification for upholding it. In contrast, a judge ‘with a normal emotional endowment would reject the challenge out of hand because his emotions told him to do so’, which would be ‘the correct response’.52

The contemporary philosopher of law, Martha Nussbaum, also has floated thought experiments about judicial emotion and has covered much of the same ground, at about the same level of generality. Her most focused treatment of the theme is a 1996 lecture responding to the criticism of Blackmun as having been overly emotional.53 Like Posner, Nussbaum thoroughly debunks the idea that emotion is necessarily irrational—indeed, Posner later relied heavily on her work in making that point.54 She asks, rather, whether the traditional objection might instead reflect a concern that emotion might lead judges towards what she colourfully called ‘an inappropriate[ly] gushy way of proceeding’.55 This she characterises as an ‘interesting worry’, one she appears not fully to share. Nussbaum draws on Adam Smith’s Theory of Moral Sentiments to propose that a judge ought to engage with emotion as does a reader of literature or a concerned friend. That is, she muses, the judge should vividly imagine the emotions of the participants in any case before her but filter out ‘that portion of anger, fear, and even compassion that focuses on the self in its cherished projects’.56 Such a semi-distanced stance would allow the judge to share, for example, the participants’ ‘grief, but not its disabling and blinding excesses’.57 Nussbaum’s ‘judicious spectator’ would feel only such emotions as are ‘tethered to the evidence’58 and would work to avoid reactions stemming only from her ‘personal goals and situation’.59

Though Nussbaum has not returned to this thought experiment, she elsewhere has introduced a tension within her theory by suggesting that a judge’s personal reactions are sometimes both relevant and appropriate prompts to action. For example, she has defended legal decisions based on judges’ ‘outrage’,60 an emotion she characterises as a moral sentiment ‘pertinent to legal judgment’ and ‘a reasoned judgment that can be publicly shared’.61 Her positive assessment of outrage was, likely not coincidentally, made in the context of discussing a case with whose result she strongly agreed—preventing a convicted murderer from regaining possession of the instruments of his crime. In Nussbaum’s work, then, we also find a critical indeterminacy. For most cases she appears to be advocating (if in a pensive, rather non-committal way) relative emotional distance, while she sees some subset of cases in which a more forthright emotional reaction as preferable in order to achieve a desired end.

Posner and Nussbaum thus have staked out the basics of the prevailing view among the script’s growing number of contemporary dissenters: judicial emotion exists and in some way affects decisions, particularly in cases admitting of some discretion; further, emotion’s influence should not be presumed to be deleterious and may in fact be beneficial.62 We see much the same view echoed by Judge Irving Kaufman, who has written that when the law provides the judge ‘with decisional leeway, we do well to recognize that our intuition, emotion and conscience are appropriate factors in the jurisprudential calculus’.63 Accounts differ as to what sorts of cases fit these constraints—constitutional due process claims, for example, or cases resonating with strongly-held moral sentiments—and as to whether the emotions in question must be felt at a distance—with the judge as emotional proxy for others’ interests—or can spring from the judge’s own body, heart and mind.

Accounts differ, in part, because in a diverse society they must differ. The intellectual history makes clear that evaluation of judicial emotion is inescapably value-laden. It is difficult to imagine making judgements as to its propriety without some sort of normative guideposts tethered to an instrumental goal. We desire emotion, whether it be empathy or outrage, only if it will help judges take correct actions. Unfortunately, this necessary normativity tends to be buried or disclaimed even in contemporary accounts.

III.Emotion in the Discourse of Judging

Having looked to scholarly and popular discourse about judging, we now turn to an examination of the picture of emotion that emerges from judging itself. This picture is necessarily pointillist. Its dots of colour consist of judges’ expressions of emotion in the written word, oral remarks, videotaped episodes and the like, with some outlines of structure provided by judges’ first-person accounts.64

What emerges is a full range of emotions, as one would expect in a job that requires daily engagement with the human drama, whether in person (for the trial judge) or on paper (for the appellate judge). Not only must judges attend to, police and channel the emotions of jurors, witnesses, lawyers and the public, but—as the Realists insisted—they clearly experience their own. Judges routinely encounter disturbing evidence that can trigger shock and disgust.65 The parade of misery they must confront in their chambers and courtrooms—stemming from broken families, drug and alcohol addiction, carelessness, violence, greed, fraud and petty disputes, to name a few persistent triggers—can make judges angry and sad. Inability to fix all these ills can make them feel frustrated, even depressed.66 Difficult colleagues and fierce intra-court personality clashes are not uncommon.67 The pressure of decisional authority can weigh heavily.68 Security concerns, backed by infrequent but salient episodes of retaliatory violence, weigh heavily as well. Fortunately, judges also experience pleasant emotions: joy when a needy child is placed with a family; hope when a drug-court defendant completes treatment; pride in crafting a tightly reasoned, well written opinion. A judge’s emotions will be as varied as is his or her work.

As we seek to compile the evidence of this rich emotional palette some words of caution are in order. Finding emotion in judicial artifacts is not a straightforward enterprise. Not only do judges often mask emotion in order to project compliance with the script of dispassion,69 but they may manufacture, manipulate, or exaggerate emotional expression in order to achieve their goals. As Lawrence Baum has elucidated, judicial behaviour is at least in part a performance aimed at a target audience.70 Any regular observer in a juvenile court, for example, has witnessed judges ‘ginning up’ a stern demeanour, complete with displays of disappointment and anger, in an attempt to evoke fear or remorse in a young offender. Such emotional performativity is itself interesting and worthy of far greater study. For present purposes it is worth noting as a factor complicating an effort to use judges’ behaviour as a true metric of their emotional experience.

Further, reading emotion into judicial observations is particularly suspect if undisciplined or grounded in faddish theory. One Realist writer, for example, regarded judicial opinions as ‘confessions’ from which, using ‘the laws of emotional behavior’, one might diagnose deep psychoanalytic issues.71 He then relied on an opinion in which the judge had expressed disgust about sexual matters to diagnose him as suffering from Puritanical shame; he further concluded that the judge had likely patronised prostitutes.72 A rough contemporary examined more data points in diagnosing judges’ ‘emotional personalities’, including their family lives, vocal habits, physical attributes and professional interactions, but came to similarly suspect conclusions—for example, by relying on one judge’s ‘exhibitionist and homosexual trends’, evidenced by a ‘florid’ writing style, ‘conspicuous’ clothes and ‘foppish’ hats, and his habit of allowing ‘his hands to hang limp at the wrist’.73 That these conclusions now seem painfully off-base should remind us that some of our present assumptions someday will appear similarly dated. While modern-day efforts to tease out emotional motivators and influences appear far less suspect by virtue of being grounded in a more sophisticated emotion epistemology, the enterprise remains fraught.74

These cautions inform the discussion that follows. It gives disproportionate attention to evidence of judicial anger, not because anger is the most important judicial emotion—though it appears to be one of the most commonly experienced—but because it is relatively easy to recognise.75 The discussion also privileges observations that have a sound methodological basis or that emerge from judges who are making a concerted effort to be candid.

A.Moments of Judicial Candour About Emotion

Candour is a nice place to start. It is not uncommon for judges to explicitly articulate the post-Realist script in emotionally challenging cases. Such articulations tend to follow a simple formula: acknowledge the emotion and then announce that it will have no impact on the proceedings. For example, in a non-injury armed robbery case a trial court judge struggled over whether to disregard a prior conviction that, because of California’s harsh three-strikes law, greatly lengthened the sentence. Noting the defendant’s troubled youth, grossly inadequate parenting and early gang involvement, the judge said into the record:

[T]his is not easy for the court … It’s sad [that the defendant] started out very young and God knows there was nobody there to tell him right from wrong, obviously. And he’s locked himself into this position of being a dangerous bad guy. And it’s sad and it makes the court sad but … the court cannot justify [striking the prior conviction] as much as I would like to see this young man have some hope of salvage. The court feels it has no choice but to deny the motion.76

Similar themes may be seen in a very different opinion, one written by a state-court appellate judge in a case involving the killing of a pregnant woman with whom the defendant had a small child. This judge agreed with one of the defence arguments on appeal. Cognisant of the intense publicity surrounding the case and his lonely status in dissent, he wrote a highly unusual ‘preface’ before explaining the legal basis for his opinion that the defendant was entitled to a new trial. Its rare level of raw emotional content makes the preface worthy of quoting at length:

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