PINNING DOWN PSYCHOLOGY OF JURISTS' HUNCHES

September 17, 2001

By Steven P. Garmisa
Hoey Farina & Downes
sgarmisa@felahfd.com

Modern psychology is beginning to provide a scientific explanation for the judicial hunch.

The role of judicial hunches in deciding difficult questions of law was described by Judge Joseph Hutcheson in 1929. A U.S. District Court judge who later served on the 5th U.S. Circuit Court of Appeals, Hutcheson explained: "I, after canvassing all the available material at my command, and duly cogitating upon it, give my imagination play, and brooding over the cause, wait for the feeling, the hunch -- that intuitive flash of understanding which makes the jump spark connection between question and decision, and at the point where the path is darkest for the judicial feet, sheds its light along the way."

U.S. Supreme Court Justice Benjamin Cardozo described the process as the lifting of a fog.

"The curious thing," Cardozo recounted, "is that sometimes in the hardest cases, in cases where the misgivings have been greatest at the beginning, they are finally extinguished, and extinguished most completely. I have gone through periods of uncertainty so great, that I have sometimes said to myself, 'I shall never be able to vote in this case either one way or the other.' Then, suddenly, the fog has lifted. I have reached a stage of mental peace.

"I know in a vague way that there is doubt whether my conclusion is right. I must needs admit the doubt in view of the travail that I suffered before landing at the haven. I cannot quarrel with anyone who refuses to go along with me; and yet, for me, however it may be for others, the judgment reached with so much pain has become the only possible conclusion, the antecedent doubts merged, and finally extinguished, in the calmness of conviction. I have little question that these recurrent stages of agitation and serenity are the common experience of other toilers in fields of intellectual effort."

How does one clear answer emerge from a mass of contradictory legal material in tough cases?

The problem, Illinois Supreme Court Justice Walter V. Schaefer wrote in 1966, is that we lack "techniques and tools which are sensitive enough to explore the mind of man and report accurately its conscious and subconscious operations."

Now scientists may have some of the required tools and techniques. Professor Dan Simon believes the judicial hunch "as an aid in decision-making is probably more germane than most commentators believe" (although he thinks the hunch "in its unexplored form it is too nebulous to illuminate the process in a meaningful way").

Relying on modern scientific psychology, Simon (a professor of law and psychology at the University of Southern California) provides a new model of judicial decision-making. Dan Simon, "A Psychological Model Of Judicial Decision Making," 30 Rutgers Law Journal 1.

Simon sees important clues in the prevailing style of appellate opinions. The old formalist notion of judging (that judges decide questions of law by mechanically applying rules from existing precedent) has been under attack from legal realists for more than a century. "The pre-realist characterization of judicial function as one of merely finding and pronouncing extant law was assailed by Holmes, Cardozo and their successors."

As a new judge sailing on a "trackless" ocean of law, Cardozo reported feeling "much troubled in spirit" when he realized his quest for "the solid land of fixed and settled rules" was futile. Eventually, Cardozo became "reconciled to the uncertainty, because I have grown to see it as inevitable." Judging, Cardozo concluded, "in its highest reaches is not discovery, but creation."

Now, Simon reports, "The metaphor of judge-as-creator seems to have become common wisdom; several observers note that 'nobody believes any longer' in the formalist metaphor of the judge-as-finder. As one judge put it, this conception of the judicial role amounts to 'intellectual nonsense.' " Yet, Simon points out, "the metaphor of the judge as discoverer is very much alive and doing remarkably well in American law."

"Although few judges would defend this view in extra-judicial writings, the majority of judicial opinions continue to operate as if discovering extant law is the primary modus operandi of judging. Professors Rubin and Feeley note that even though legal formalism has been officially discredited, even scorned, its ghosts continue to whisper to us that any other type of judging is simply unlawful. Fredrick Schauer adds that legal reasoning is still couched mostly in the language of discovery. Indeed, much of what was supposedly undone by the realist critique seems to persist until this day."

A neo-formalist style dominates written U.S reviewing court opinions, Simon says. "The judicial opinion continues to be based largely on syllogistic forms of argumentation; judges maintain remarkably high levels of confidence in their decisions; and opinions portray the chosen decision as singularly correct. Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: the decisions are strongly constrained by the legal materials.

"It seems that this neo-formalist form of jurisprudence -- typified by a self- reported experience of constraint, high confidence and singular correctness, all couched in the rhetoric of closure -- is the predominant, albeit unofficial, mode of judicial reasoning in current American legal culture. It seems also that the social expectation from the judiciary is that opinions adhere to this style. The persistence of this judicial posture is quite surprising, particularly since we are all supposedly legal realists."
What's happening?

"The curt answers," according to Simon, are that judges write opinions portraying themselves as strictly limited by legal authorities, and "confidently report" they are providing "singularly-correct" answers to complex legal questions "because that is the way they perceive the legal dispute at the completion of the decision-making process. This perception is largely genuine, but it is not a particularly precise one."

Simon's psychological model of judicial decision-making (the focus of part 2 of this article next Monday) looks "into why and how this perception comes about."

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