Thursday, May 29, 2014
Those in the habit of reading judicial opinions recognize that the post-Windsor opinions of some lower federal courts do not read like most other lower court opinions. As Robert Barnes wrote recently in the Washington Post, some of these opinions are "quite personal" while others contain "sweeping language" showing heightened consciousness of history. Some also praise the plaintiffs for personal qualities like courage and devotion.
The bottom-line outcomes in these cases may be partially influenced by "constitutional physics," as I've previously speculated. But something else seems to be going on in the opinions themselves, at a level that is too personal to be described in terms appropriate to the physical world. One perspective that comes to mind in thinking about this "something else" is that supplied by political scientist Lawrence Baum in his book Judges and Their Audiences: A Perspective on Judicial Behavior. In this book, Baum draws on social psychology and other disciplines to explain the influence of audience on judicial behavior. At the beginning of a chapter on"Judging as Self-Presentation," Baum explains:
In their essence, the premises of my inquiry into judges and their audiences are simple:
1. People want to be liked and respected by others who are important to them.
2. The desire to be liked and respected affects people's behavior.
3. In these respects, judges are people.
The connection with Baum's perspective came in thinking about the fact that Judge Jones gave a phone interview to Barnes in which he explicitly mentioned audience-related considerations when describing his opinion-writing frame of mind for Whitewood v. Wolf. If I had better command of Catholic legal theory, I'm sure that I could illustrate the usefulness of Baum's perspective with quotations from St. Augustine on human psychology. For now, however, I must plead my limitations and ask the patient indulgence of this post's audience.