Apologies for the radio silence – I’ve been traveling and away from a reliable internet connection. (Taking a break from Google is one of the true pleasures of travel. I’m afraid, however, that it’s an endangered pleasure, like train travel. I’m always impressed by all the places, from airplanes to remote beach hotels, that are now wireless.*)
David Brooks has an excellent column today on the emerging neuroscience of morality and the “useful falsehood” of the rational judge:
In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.
I think that’s exactly right, which is why all the political arguments about the necessity or danger of empathetic judges are so silly. People are master confabulators: we so effectively justify our moral intuitions that we’re convinced they’re not intuitions, but are instead derived from perfectly rational principles. (Only the other side is dependent on the frailties of feeling.) This is why, as Oliver Wendell Holmes Jr. correctly noted, “Lawyers spend a great deal of their time shoveling smoke.”
The important questions, of course, concern the practical implications of this “moral intuitionist” view. (For those interested, I discuss the emotions of decision-making, and what they can teach us about psychopaths, at length in my book. See also the work of Jonathan Haidt.) Brooks makes a good point here too:
Is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we’re emotional creatures in an idiosyncratic world, it’s prudent to have judges who are cautious, incrementalist and minimalist.
Obviously, some decisions call for more than mere minimilism. (See, for instance, the recent decision by the California Supreme Court on Prop 8.) In general, however, the subterranean nature of moral decision-making should make us extremely circumspect of grandiose and overconfident proclamations. Behind those eloquent judicial opinions, after all, is blinkered limbic system, pumping out feelings for reasons we can’t begin to explain.
So what should we look for in a judge? Once again, Holmes gets it right: “To have doubted one’s own first principles is the mark of a civilized man.” If I were a senator, I’d be interested in asking Sotomayor to give an example of a case in which she changed her mind, in which the search for rational-sounding justifications led her to overturn her initial instincts. Too often, we use reason to merely confirm what we already believe. The true mark of good judgment, however, is the use of reason to interrogate what we believe. Rationality won’t give us the right legal answers, but it can help us ask the right questions.
*Which reminds me: are we really convinced that all these waves fluttering through the lower atmosphere have no consequences? After all, we know that cell phone transmissions can have a (slight) impact on brain activity?