The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The great Clarence Darrow argued that emotion was everything in the courtroom. He asserted that juries "seldom convict a person they like or acquit one that they dislike" and thus "the main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant." Although his view on emotions is extreme, most people believe emotions influence juries. But what about judges? Especially when they are deciding issues of law, we expect that judges will set aside their sympathies.
In fact, judges routinely assert that sympathy and emotions have no role in their decision making. In her confirmation hearings Justice Sotomayor stated explicitly that "it is not the heart that compels conclusions in cases. It's the law." Similarly, when asked by Senator Chuck Grassley whether she agreed that "the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?" Justice Kagan replied that "it's law all the way down." The public expects judges to affirm a dispassionate commitment to the law.
Some judges, however, admit that emotion plays a role in shaping the law. Justice William Brennan asserted that "[s]ensitivity to one's intuitive and passionate responses … is … not only an inevitable but a desirable part of the judicial process." Justice Robert Jackson likewise asserted that a dispassionate judge was a mythical being, much like "Santa Claus or Uncle Sam or Easter bunnies."
Are judges free from the influence of sympathy or is that ideal a myth? To shed some light on the question, we undertook a series of experiments to evaluate the role that sympathy might play in the decision making processes of sitting trial judges. In each of our experiments, we asked judges to evaluate a hypothetical case involving either a sympathetic or an unsympathetic litigant.
We recognize, of course, that for the trial judge, emotion might be directly relevant in some cases. For example, judges are obliged to consider background characteristics of a defendant in rendering a criminal sentence, which invariably will create sympathy or antipathy. In our studies, however, we asked judges to make rulings of law, ensuring that the individual characteristics of the litigants were not relevant to the decision being made.
In one study, we asked judges to determine whether an undocumented alien had committed fraud when entering the country. We informed the judges that the defendant had pasted a forged visa into his genuine Peruvian passport in order to gain admission to the United States. He was clearly guilty of illegally entering the United States, which is a misdemeanor.
The prosecutor, however, also wanted to add a charge of forgery of an identification document. If found guilty of this charge the defendant would spend some time in prison before being deported. The defendant admitted that the visa was a fake but argued that pasting a fake visa on a genuine passport did not satisfy the statutory definition of forgery.
For half of the judges, we described the defendant as having entered the United States in an effort to earn extra money for his sick daughter; for the other half, he was trying to track down an individual who had stolen money from a drug cartel. Among the judges who evaluated the father, 44% ruled that he had also committed forgery; whereas 60% ruled against the would-be assassin. Even though the reason for his entry into the United States is not relevant to the statutory definition of forgery, it influenced the judge's choice.
We found similar effects in four other studies. When being asked for a ruling on a legal issue involving drug possession, the judges made a more favorable interpretation of a statute for the defendant when we indicated that he was a 55-year old with a serious illness than a 19-year old with a mild illness. We found that bankruptcy judges were more apt to discharge credit-card debt accrued by a young woman deliberately overspending to help her ailing mother than that of a young man running up debt on a spring break trip.
Judges were more apt to find a city jail's mandatory strip-search policy for new inmate unconstitutional on its face when the plaintiff was a college co-ed arrested at a protest as opposed to a male arrested for a violent crime, even though the judges knew that the ruling would apply to all inmates. And we found judges to be more willing to rule evidence of drug possession admissible under the fourth amendment when the drug was several bags of heroin (accompanied by a contact list at a high school) than when it was two marijuana cigarettes.
In all of our studies, the facts that created sympathy or antipathy were not relevant to the interpretation of law we had asked them to make. It might be unreasonable to suppose that judges will be able to ignore their emotions, however. As Professor Terry Maroney has argued, it may even be counterproductive for judges to try. We agree with Professor Maroney to some extent, but we worry about pernicious influences of emotion. Relying on sympathy creates different law for different people. Furthermore, emotion might be the means by which implicit biases creep into the judicial process.
Our last example of emotion in judges provides a case in point. We asked a large group of Minnesota judges to award punitive damages in an environmental pollution case. The plaintiff was a Minnesota farmer who suffered severe poisoning when swimming in a lake on his property into which the defendant had dumped his company's hazardous waste.
For half of the judges, we indicated that the defendant was also a Minnesota company; for the other half, it was a company from Wisconsin. Although the state of origin could hardly matter, the judges treated the Wisconsinite as an outsider, awarding 50% more in punitive damages against him than against the Minnesotan. We also found similar results with several other pairs of states. Other characteristics that define group membership, such as race, gender, and religion, likely matter far more than state citizenship.
With the greatest of respect to Justices Kagan and Sotomayor, emotions matter to judges. Judging is apparently not "law all the way down." As with all of our research on judges, we find (to quote the great Jerome Frank) that they are human beings after all.
We are grateful to Professor Volokh for the opportunity to present some of our research in his blog this week. We are also grateful to the thousands of state judges, U.S. federal judges, Canadian judges, and Dutch judges for participating in this research. We undertook this project to educate judges and to improve their decision making abilities. We have been fortunate to find receptive and attentive audiences of judges to participate in our efforts.
Our full article on the emotional influence on judges: Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings, 93 Texas L. Rev. 855 (2015).