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Monday, September 20, 2010

The Invisible Side of the Judicial Bed

On occasion we all wake up grumpy (or grumpier than usual).  We’re a touch more critical, a pinch more pessimistic, a bit less filled with neighborly love.  Sometimes coffee and carbohydrates restore our spirits; other times an internal scowl lingers.  As a result, minor decisions—e.g., whether to snap at a colleague, criticize a spouse’s outfit, skip a conference call—may turn out differently than if we were in our “normal” mood.   The same is true in the opposite direction if we wake up feeling like Ned Flanders. 

Judges, human as the rest of us, are subject to the vicissitudes of mood.  How often do judges’ unusual mental states—from euphoria associated with the birth of a grandchild, to occasional cheerfulness/grumpiness, to profound mental distress occasioned by spousal loss—affect their legal decisions?  Put another way: assume both Human Judge A and Robot Judge A normally make decisions according to the same set of jurisprudential heuristics.  Human Judge A’s mood varies with roughly the same frequency and magnitude as a normal white-collar professional of similar age and education; Robot Judge A’s mood never varies. 

How often will their decisions differ?

My own intuition, as yet uncorrupted by any effort at empirical study, is that (1) a nontrivial amount of “mood-based decisional divergence” occurs and (2) the divergence decreases the higher up the appellate food chain one rises.   Among other things, the institutional structure and dynamics of the Supreme Court, as well as the intense scrutiny that accompanies all their judicial acts, seem to be powerful mood-scrubbers.  Trial court judicial acts—including innumerable discovery and evidentiary decisions—seem much more susceptible to mood divergence.    

Agree? Disagree? I’m also interested to hear examples where credible biographers/observers have concluded that particular Supreme Court Justice’s opinion or opinions were significantly influenced by his/her unusual mental state at the time a case was decided.   

Posted by Brendan Maher on September 20, 2010 at 12:55 AM | Permalink


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This comment by Brendan in response to Patrick:

"I suspect it happens, and more often at the trial level than at the Supreme Court."

indicates that while a trial judge may act as an umpire (with quick decisions on evidence, etc), a Supreme Court justice has months and months to consider a trial judge's "umpirical" decisions that are the subject of appeal, reviewing briefs, consulting with clerks, other justices, etc, oral argument, conference(s), drafting and redrafting opinions until at least five (5) justices can agree. So perhaps CJ Roberts' umpire analogy of a SCOTUS justice serving as umpire is off base. Dealing with the moods of nine (9) justices over several months until a decision is made by at least five (5) of them might require months and months of psychological analysis. What I would hope for is that the justices - and all other judges - wake up each morning singing "I'm in the mood for justice."

Posted by: Shag from Brookline | Sep 21, 2010 7:04:41 AM

I bet if you spoke to public defenders in a state system on sentencing days, you'd get a lot of anecdotal evidence supporting your theory. You might even be able to get empirical data showing spikes on certain days, although one likely could not precisely attribute those spikes to moods.

Posted by: Jen Kreder | Sep 20, 2010 4:40:28 PM

Thanks for the thoughtful comment, Patrick.

Decision-making is more than mood, certainly. But insofar as people have something that can be described as a normal mental state ("normal" compared to their own range of mental states, as opposed to "normal" compared to the population at large), I was using "mood" to refer to significant variations from that norm, and for my purposes, I think that rough definition is sensible. In that regard, I might make a different decision on issue X if I'm in a particularly bad mood (or, more extremely, if I'm grieving), than if I were in my normal mental state. How often does that happen to judges in the course of legal decisions?

I suspect it happens, and more often at the trial level than at the Supreme Court. Other people's intuitions may differ, and I thought it would be interesting to discuss. Whether we can know if, when, and the degree to which "mood divergence" is happening is another matter; the empirical task may well be intractable.

Posted by: Brendan Maher | Sep 20, 2010 10:41:53 AM

erratum (last para.): "...but instead must consider...."

Posted by: Patrick S. O'Donnell | Sep 20, 2010 3:02:22 AM

While intrigued by the notion of “mood-scrubbers,” I suspect “mood” is being used a bit too indiscriminately if perhaps incorrectly here. It seems, for instance, the concepts of an emotion (both occurrent and episodic) and feeling (as in ‘feeling towards’) are being conflated with (or at least not sufficiently distinguished from) that of a mood, although all three concepts are not unrelated to each other. And who is the one ascribing these “moods?” Perhaps the ascription is over- or under-determined in any given case. How do we distinguish between a “usual” from an “unusual” mental state when emotions are involved in both instances (i.e., emotions can both facilitate or aid reasoning and inhibit or distort it)?

I have a hard time believing we could design an empirically persuasive study capable of confirming (or disconfirming) such mood-ascriptions: to be accurate or persuasive I would think it need entail something on the narrative order of a psychobiography, that is, a fairly ambitious if not complicated narrative structure that appreciates how a person’s emotion, mood, and character are in fact interwoven. This would include, for example, demonstrating how one might distinguish between the experience of a feeling or episodic emotion, from the simultaneous experience of an occurrent (or long-term) AND episodic emotion or episodic feeling. Such a narrative would also have to rule out other causal or explanatory factors, be they rational or, as we say today, situational. Moreover, as Peter Goldie has explained, we can understand and explain emotions in the third person in two different ways: from a “personal and normative” perspective along the lines of what we call “folk,” “common sense,” or “everyday” psychology, or “impersonally,” with the ambitions of a scientific perspective (that of the ‘theory-theorist’), leaving aside the question of how these two forms of explanation and understanding relate to each other. Which vantage point do we take up? I myself prefer the former mode (for ‘understanding, explanation, and prediction do not involve deploying a theory which is impersonal in the way that theories about objects are’), although Paul and Patricia Churchland would argue for the latter.

One begins to imagine any plausible such ascriptions with sufficient explanatory force will have to emulate Sartre’s biography of Flaubert! Presumably, in other words, we cannot make emotional ascriptions with explanatory relevance in an isolated, microscopic, or piecemeal manner but instead consider, in fine-grained fashion, “a person’s character, mood, thoughts, feelings, sayings, actions, bodily changes, expressions of emotion, and self-interpretations, as well as [one’s own] emotions, mood, and character,” for it seems all of these variables are critical to the narrative “project of understanding and explaining that person’s emotions—and emotional life….” The fundamental assumption here is that such understanding and explanation needs to be at once personal, normative and holistic.

Posted by: Patrick S. O'Donnell | Sep 20, 2010 2:59:28 AM

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