In Defense of Passion.

Or, fuck decorum.

Whether or not anyone of repute ever actually said that law is reason without passion, the notion has undeniably taken hold, often in the notion of decorum.  To take just one, minor, example: this past semester, while teaching at a law school of at least regional repute, administrative faculty informed me that law professors must maintain the strictest courtroom decorum in during lecture and that one must never, ever, use the word “fuck.” 

Why (if you’ll indulge me) the fuck not?  This isn’t kindergarten; it’s graduate school.  Professional grad school.  Find me law practice that pays well and doesn’t involve copious swearing.  Find me that elysian pasture where Federal trial judges invite counsel to explain “what the hell is this case doing in my court?” more kindly than a law professor—who’s spent the entire semester cultivating a good-natured and compassionate ethos—chuckles “what the fuck is this case doing in Federal court?”  But set aside the practical training and focus on the substance.  What decorum do we owe the law? 

Certainly, some baseline decorum is required for business to proceed and to cultivate basic civic adherence to the rule of law.  I won’t pretend to know where the line is, but I submit it lies quite a bit lower than you think.  Because decorum isn’t an objective standard.  Those in power determine which conduct crosses the line.  All too often in American law, decorum devolves to dismissal of eminently reasonable moral outrage as (usually racial or gendered) hysteria.  And the only acceptable response to such outrage seems to be to sit their quietly and take it. 

Perhaps no better example exists than our discussions of a (democratic) Supreme Court nominee’s “judicial temperament”—that is, her silent, resigned acceptance of public verbal abuse.  (And no dismissing this as mere politics.  We make law in judicial nominations just as much as we do in Congress.) 

Take the unquestionably qualified esteemed judge, former Federal defender, and somehow only the first black-woman nominee, Justice Jackson’s recent experience, sitting through Senator Marsha Blackburn’s accusations of her “hidden agenda . . . to let violent criminals, cop killers and child predators back to the streets?”  Through Senator Ted Cruz’s interrogation about racist babies?  And even through Senator Josh Hawley’s (and others’) deranged lies about then-District Judge Jackson’s criminal sentencing record.  All while Democrats on the Judiciary Committee (Senator Booker notably excepted) just watched, meekly praising her “judicial temperament.”

To what end?  Last I checked, judges read law, hear cases, resolve controversies, and, well, judge.  I must have missed my judge’s daily silent and unprotested crucifixion (sure, we clerks suffered daily indignity, but that’s a different issue).  And even forget for a moment the bad-faith tantrums about judicial methodology or sensitive criminal sentencing.  I forget exactly when we left racial dog whistles aside (assuming they ever were just dog whistles), but Republicans’ continual swipes at Justice Jackson on the topic of “critical race theory” stood waist deep in the “we’re calling you to account for all black people” side of the pool (a pool which, coincidentally, Republicans then proceeded to close rather than integrate). 

Which raises the question: How far must Republicans go to exceed the bounds of “oh we’re just testing her judicial temperament?”  Must Ted question the validity of her interracial marriage?  Must Lindsey just admit that “me and my constituents just don’t want a black woman on the Supreme Court?”  Must Marsha call her a “[racial-slur] judge?”  How far before we expect Senate Democrats to shut down the hearings?  Before Justice Jackson becomes entitled to “respectfully decline to answer your asinine question?” Before she gets to tell racist Republican senators to take their views back to the 1950s, or to the Jim Crow South.  And if you protest that Republicans would surely never cross this line, let me introduce you to Adeel Abdullah Mangi, President Biden’s nominee to be the (again) somehow-only-the-first Muslim-American Federal appellate judge, who spent several hearings in the last few months refuting Republican Senators’ charges that he must support Islamic terrorism or celebrate 9/11.  How much racist vitriol must the next Justice Jackson endure before the thoughtful and reasonable response would be to remind Republican Senators that their despicable views very much justified Sherman burning Georgia to the ground?  If our concept of “judicial temperament” answers with “never,” then, I submit, we have already lost. 

To be sure, temperament, like decorum, plays its part.  Much of our common law aims to constrain individual judicial preferences (although the extent of its efficacy remains debatable).  But these restraints seek to elevate judicial decisionmaking above individual human frailties—not excise humanity altogether.    

We must reject the notion that the law stands opposed to emotion. 

Put aside the misogynist undertones inherent in any disparagement of emotion in the law.  Many instances of reasoned lawmaking require passion precisely because the reasonable response is the passionate one.  As I hope I have already hinted, the reasonable and thoughtful response to stumbling across an American chattel-slave plantation, the charred remnants of a “battle” between the U.S. Army and indigenous peoples, or a concentration camp of caged child refugees on the border would be to cry something akin to “my God, my God, why have you abandoned [us]?”

True enough, these horrifying examples represent extreme cases.  Yet many ordinary applications of the law reveal a desperate need for human passion.  Tort law, for a prime example, explicitly reduces the value of human life to a dollar value to simplify the calculation of damages where we cannot remedy in kind.  In that light, perhaps a necessary abstraction.  Immediately, though, such commodification results not just in treating harm as a cost of doing business, instead of striving as a matter of human dignity to avoid it.  And before long, given businesses’ cost-minimization tendencies let alone our national history of devaluing certain groups, such reasoning places environmental hazards near poorer and darker skinned communities and, ultimately, drives our gender and racial wage gaps.  One would have hoped this nation, built on chattel slavery, would have better learned to recognize and abhor the commodification of human bodies and instead craft solutions with a focus on human dignity. 

At bottom, history more than demonstrates the regular failure of legal reason and the necessity of human emotions like compassion and empathy to correct our course.  Calls for dispassionate engagement seek to justify a legal system which has already justified slavery and white supremacy, poverty, denial of housing, healthcare, and education to millions, and the catastrophe of climate change.  We have no obligation to engage on this hostile terrain. 

So damn “judicial temperament.”  We should demand unabashedly compassionate and empathetic judges—judges who zealously embrace justice, cherish our right to vote, and abhor poverty more than Sam and Clarence love free yacht rides; who publicly call out their colleagues’ discrimination and harassment; who take charge of Senate confirmation hearings and reject hateful questions; and, ultimately, who inspire us and scare the hell out of racists and apologists for poverty and climate disaster and all their accompanying sins. 

And fuck decorum.  Because if you expect me to stand up in front of a class full of law students and pretend that American constitutional law is anything other than a shitstorm of the deranged pontifications of centuries of mush-for-brains enslavers and their apologists, we are, again, already lost.

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