305. The Romantic Age

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)