Date of this Version
Court Review, Volume 49, Issue 2 (2013)
As a Supreme Court Justice once wrote, “dispassionate judges” are “mythical beings,” like “Santa Claus or Uncle Sam or Easter bunnies.”1 Judges have emotions, and emotions influence decision making. These observations may seem obvious, even banal. But their implications are broad-reaching. Judicial emotion is more common than most people—certainly laypeople, and perhaps judges as well— would like to believe. Further, emotion almost certainly has a substantial impact on judicial decision making and behavior— and that is not necessarily a bad thing.
The ideal of the emotionless, “dispassionate” judge has a very long pedigree. More than three centuries ago, Thomas Hobbes wrote in Leviathan that the ideal judge is “divested of all fear, anger, hatred, love, and compassion.”2 To a modern ear such a blunt statement sounds, perhaps, antiquated. To the extent this is so, it is because the Legal Realists of the early twentieth century largely convinced us of the importance of the person wearing the robe. Law is not certain, and judges have discretion, within which space ostensibly “alogical” or “non-rational” forces have room to operate.3 As the great Benjamin Cardozo once mused, “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.”4