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“Managing Judicial Emotion” by Professor Terry Maroney

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The ideal of the emotionless, dispassionate judge has a very long pedigree. More than three centuries ago, Thomas Hobbes wrote in 1651 that judges ought to be “divested of all fear, anger, hatred, love, and compassion”—a tall order indeed, and a standard that few if any human judges can meet. In the contemporary era, it is more common to acknowledge that judging brings its fair share of emotions, from pride to sorrow to anger to excitement. As Justice Sonia Sotomayor said during her nomination to the U.S. Supreme Court, judges “are not robots who listen to evidence and don’t have any feelings.” However, the prevailing ideal remains that judges should (again in Justice Sotomayor’s words) “recognize those feelings and put them aside.” Again, a tall order, but a less obviously unattainable one.

In a session at an upcoming conference hosted by the National Judicial College of Australia and The Australian National University in Canberra (Judges: Angry? Biased? Burned Out?), I am going to push back on this kinder, gentler narrative in two ways. One: the business of “putting emotion aside” is not as easy as it sounds, and some of the things judges may be doing to achieve that goal can actually do you and the public a disservice. Two: putting emotion aside is not always the right goal at all. Interested? Here is a quick preview.

It is extraordinarily common for the daily work of judging to involve a wide range of emotions. The causes will reflect the specifics of your work. Judges handling family matters may confront the sorrow of seeing children’s lives broken apart; those in a criminal docket may hear gruesome evidence and struggle with anger at those who have inflicted harm; appellate judges can become isolated when they lack contact with colleagues and irritated when they do. No matter what your work, you may be challenged by caseload stress and frustrated by poor lawyering. Hopefully, you also have many sources of fulfilment—the pride of doing a good job, the pleasure of facilitating a fair resolution, the hope that comes with giving a second chance. Whatever your unique emotional mix, it is a sign of your humanity, not a sign of failure.

However, it is true that emotions must be managed. This is true for all humans and it is true for judges. One aspect of your job is managing your feelings and emotional expressions to conform to expectations—for example, the public’s legitimate expectation that judges will treat court users with patience and respect and conduct themselves in a dignified manner. You also are expected to shape the feelings and expressions of those court users—for example, dampening outbursts, attending to frightened or traumatized parties, or protecting jurors from disturbing evidence that they don’t need to see to do their job. It is hard work to pull all this off. That’s why it even has a name: “emotional labour.”

A judge’s emotional labour requires not that you somehow set your emotions aside, but that you make choices about how to manage them. If you can notice, name, and explain your emotions to yourself, you may conclude that they are perfectly appropriate to the situation—or not. You may conclude that expressing your emotions to other people is perfectly appropriate, too—or not. To make your court run well and make court users feel good about the court, you may need to be a sort of conductor, setting the emotional tone, drawing out harmonious performances and dampening dissonant ones. This is judge-craft, not magic. Whether managing your own emotions or those of others, you have many emotion-regulation strategies you can use—none of which requires you to suppress or deny your feelings. In fact, suppressing or denying your feelings can harm both your personal wellbeing and your professional performance.

The good news is that productive emotion management skills can be learned and practiced. In my conference session (“Judicial Management of Emotion”), I will share some concrete insights on how to get started. You certainly will get angry in your work – that part is inevitable. But you do not have to be biased, by anger or any other emotion, and you certainly do not have to be burned out. Those outcomes, fortunately, are preventable.

 

~Professor Terry Maroney, Law School, Vanderbilt University, USA