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491989
2013
ARTICLE
Emotion Review
Vol. 6, No. 2 (April 2014) 142151
The Author(s) 2013
ISSN 1754-0739
DOI: 10.1177/1754073913491989
er.sagepub.com
Terry A. Maroney
James J. Gross
Abstract
According to legal tradition, the ideal judge is entirely dispassionate. Affective science calls into question the legitimacy of this
ideal; further, it suggests that no judge could ever meet this standard, even if it were the correct one. What judges can and should
do is to learn to effectively managerather than eliminateemotion. Specifically, an emotion regulation perspective suggests
that (a) judicial emotion is best managed by cognitive reappraisal and, often, disclosure; (b) behavioral suppression should be
used sparingly; and (c) suppression of emotional experience is rarely helpful. We argue that the dispassionate-judge ideal presents
a barrier to achieving the flexibility necessary for adaptive judicial emotion regulation. We suggest a new ideal, that of the
emotionally well-regulated judge, and propose several directions for future research to strengthen ties between law and psychology,
with particular attention to the study of emotion.
Keywords
emotion, emotion regulation, emotional labor, judge, law
Corresponding author: Terry A. Maroney, Vanderbilt University Law School, 131 21st Avenue South, Nashville, TN 37203, USA. Email: terry.maroney@vanderbilt.edu
Situation Selection
Judges may try to choose cases based on their predicted emotional impact. For example, a judge may seek appointment to
drug-treatment court because she believes she will take pride in
helping addicted persons, or avoid family court if she believes
exposure to distressed families will be depressing (Anleu &
Mack, 2005). Judges thus may attempt to influence the types of
stimuli to which they will most commonly be exposed.
This strategy likely has some efficacy, particularly if a judge
correctly predicts her reactions to environments with recurrent
features. But that efficacy is limited. Even within a family, criminal, or probate court, judges are certain to encounter diverse
triggers: joyous adoptions and acrimonious divorces, defendants who turn their lives around and those who do not, families
fighting over scarce assets and wealth being fairly and generously distributed. In state systems, judges may be unable to
choose their assignments, or may need to serve in an undesirable court while awaiting assignment elsewhere. Moreover,
many state-court judges sit in courts of general jurisdiction with
virtually no control over the subject matter of their cases. This
generally is true of the entire U.S. federal judiciary: Jurisdictional
limits on federal cases (high-value disputes between persons
from different states, or questions of federal statutory or constitutional law) shape the docket, but that docket remains extraordinarily diverse.
Nor can judges reliably take a retail rather than wholesale
approach to controlling emotional triggers. Judges can recuse
themselves from individual cases only for specific reasons, such
as avoiding the appearance of bias in cases implicating personal
interests, and avoiding unwanted emotion is not one of those
reasons. In fact, the U.S. Supreme Court has held that a judges
emotional reactions will not require recusal unless they pose a
serious threat to fundamental fairness (Liteky v. United States,
1994).
Situation Modification
Whatever level of control a judge has over her docket, she may
attempt to control how emotional situations unfold in her
chambers and courtroom. For example, she might read a brief
describing a predatory fraud on the elderly poor only when she
can play pleasant music, sip tea, and take breaks; select certain
cases to be decided without argument; communicate with difficult colleagues only in writing where possible; and delegate
aggravating taskssuch as interacting with annoying attorneys
on scheduling issuesto a clerk. However, courtroommanagement responsibilities may foreclose many modifications. The judge generally may not, for example, walk out of
the courtroom during highly upsetting testimony, much as she
might like to.
Perhaps the most significant limitation on judges ability to
modify situations so as to satisfy intrinsicthat is, selfdirectedregulatory goals is the need to perform extrinsic
emotion regulationthat is, to shape the emotions of others
(Gross & Thompson, 2007). Modifying courtroom situations
Attentional Deployment
If, as suggested earlier, many situations cannot be avoided or
significantly modified, a judge might direct her attention only to
those situational features that evoke a desired emotion. She
might, for example, focus on a drug-court defendants success
in treatment, rather than his failure to look for employment.
Judges obligation to attend carefully to cases will limit this
strategy as well. This is particularly true with regard to distraction, one common type of attentional deployment. The judge
cannot selectively tune out testimony, arguments, and presentation of evidence without running an undue risk of neglecting
her duties. A lawyer might, for example, make an objectionable
argument while the judge is thinking of something else, and failure to catch and correct that error might lead to poor outcomes,
such as reversal on appeal. The judge may also have a difficult
time later remembering important information about the case.
Distracted persons demonstrate impoverished recall of the situations from which they are distracting themselves (Sheppes &
Meiran, 2008). Judges attention needs to be fairly distributed
among a cases relevant aspects, no matter their emotional salience. Therefore, while attentional deployment strategies might
further the hedonic goal of avoiding unwanted emotions and
feeling desired ones (Webb etal., 2012), they are likely to frustrate judges goal-oriented functions of professional competence and care.
Cognitive Change
If the judge cannot avoid, alter, or ignore an emotionally salient situation, she may change how she thinks about it, thereby
altering her response (Gross & Thompson, 2007). One sort of
cognitive-change strategy is to change ones appraisal of the
stimulus. For example, if the judge thinks about the drugcourt defendant as someone who is doing his best to look for
work in an economically depressed arearather than as
Response Modulation
As the prior discussion suggests, not every emotional stimulus
can be rethought. A childs tragic death, for example, is bound
to provoke emotion except in someone who has shut herself
off to human suffering. In another incident captured on camera, a criminal defendant leans forward and spits in the judges
face (Maroney, 2012). While it might be possible for the judge
to recast that experience, its most likely interpretationas an
expression of defiance or hatredis probably the most
accurate.
Judges facing undeniably provocative stimuli therefore
may try to alter their emotional responses. Behavioral suppression, a form of response modulation, involves inhibiting
the bodily responses to which emotion predisposes the judge.
In the spitting video, for example, one can see a look of surprise cross the judges face, which then quickly reverts to a
relatively neutral expression. Even casual courtroom observation suggests that judges often put on (or attempt to put on)
such a poker face; an impassive face and still body are part
of what the public expects.
Two important outcomes can flow from behavioral suppression. First, the judge models decorum, making the courtroom
easier to manage (Anleu & Mack, 2005). Second, the judge
blocks perception of her appraisals. This latter move is sometimes important: imagine a situation in which the judge believes
that a witness is shading the truth, but in which the jury is
entrusted with making the credibility determination. The judge
needs to mask her disgust with the witness lest the jury see the
information it imparts about her opinion of the witness credibility (Maroney, 2011b). Inhibiting expression is relatively effective in down-regulating outward behavioral indicators of
emotion (Webb etal., 2012), and therefore serves an important
function in shaping the perceptions and emotions of others
(Niven, Totterdell, & Holman, 2009).
Behavioral suppression of judicial emotion therefore sometimes is called for. However, it takes significant work to achieve.
Suppression consumes cognitive resources, impairing logical
reasoning (Baumeister, Bratslavsky, Muraven, & Tice, 1998;
Dunn, Billotti, Murphy, & Dalgleish, 2009) and memory
(Richards & Gross, 2006). Those functions obviously are central to the judicial task. Nor does incurring those costs ensure
change in the judges emotions. Behavioral suppression does
not lessen the experiential intensity of negative emotion; in fact,
it may magnify physiological responses (Gross & Levenson,
1993; Webb etal., 2012). Behavioral suppressions extrinsicregulation function thus is not reliably linked to an intrinsic one.
Further, in the real world suppression may be hard to maintain.
Consider that shortly after the spit-upon judge adopts a neutral
facial expression, the video shows that she leans backwards,
crosses her arms across her chest, and stares at the defendant
with what looks like an angry glower.
A judge may try to bypass the need for behavioral suppression by aiming to suppress emotional experience directly, perhaps by sheer force of will. One judge, for example, described
himself as an iceberg, but there is no heating (People v.
Carter, 2009, p. 5). Unfortunately, attempts to suppress emotional experience or thoughts of an emotion-eliciting event
have not been shown to have meaningful effect on emotional
outcomes (Webb etal., 2012). Ironically, pushing emotions
out of the mind can increase actually their intensityparticularly when under stress or cognitive load (Wegner, 2009), two
conditions that commonly attend judging. Experiential suppression can harden into a repressive coping style, associated
with poor health outcomes (Chambers, Gullone, & Allen,
2009) and callous arrogance (Koole, 2009). These outcomes
pose obvious dangers to judges. The former may increase
burnout, while the latter may feed abuses of power. Indeed, in
a case removing a judge from office, the court relied upon testimony from the judges treating psychiatrist that his singleminded desire for emotional control routinely backfired,
leading to a repressive coping style characterized by instability and abuse (In re Sloop, 2007).
Finally, judges might respond to emotion by using emotional disclosure, or describing an emotional episode to another
person or persons (Rim, 2007). Emotional disclosure is a
response-oriented strategy insofar as it is engaged after emotional onset, but its goals may include facilitation of other regulatory strategies. Enlisting the perspective of others can help
one rethink underlying appraisals, and can equip the person to
more deliberately choose or modify future situations by reflecting openly on their past emotional impact. While some of these
laudable goals may be pursued through introspection, evidence
suggests that a social-sharing aspect is often beneficial. Judges
who employ this strategy may choose to reveal their emotional
reactions to family, friends, colleagues, or even the publicfor
example, by allowing emotion to infuse written opinions and
in-court statements.
Though it directly defies the ideal of judicial dispassion,
such emotional disclosure holds great promise (if, as discussed
in what follows, done for the right reasons). Though thinking
and talking about emotions does not generally lessen their intensity, it enhances self-knowledge and can help one live with emotion more comfortably (Koole, 2009; Rim, 2007). Judge
Kozinski, for example, believes that by sharing his feelings he
has become better able to appropriately integrate them into
decision-making (Maroney, 2011a). When a Los Angeles judge
wrote an article discussing his frequent anger at lawyers, parties, and jurors, it represented an important step in his journey to
lessen that anger and lengthen his career (OBrien, 2004). It is
reasonable to conclude that the social sharing of emotion holds
One major barrier to such flexibility is the dispassionatejudge ideal itself. A blanket prohibition on emotion hampers a
differentiated examination of the role emotions play in judging;
judges therefore are hindered (or at a minimum not helped) in
their ability to label, identify, and understand their emotions,
abilities critical to concepts of emotional intelligence (Barrett,
Gross, Conner, & Benvenuto, 2001). If judges have internalized
the traditional legal narrative that emotion is stubbornly irrational, they will be predisposed toward commensurately simplistic regulatory strategies, and experimentation is unlikely to
seem worthwhile (Gross & John, 2007; Wranik etal., 2007).
Context-sensitive regulation thus is hamstrung by unrealistic
insistence that good judges either feel no emotions or are able
effortlessly to set them aside.
In contrast, realistic assessment of regulatory options, coupled with assessment of their differential appropriateness and
impact, can help judges meet the challenges of their vital work.
Rather than expecting judges to regulate emotion in an empirical vacuum, we may draw on empiricism to formulate a new
ideal: not the dispassionate judge, but the emotionally wellregulated one.
Table 1. Judicial emotion regulation processes and their hypothesized level of adaptiveness
Process
Situation
selection
Likely
Rationale
adaptive value
Mixed
Conflicts with
professional
duties
Adaptive
Situation
modification
Attentional
deployment
Cognitive
change
Conflicts with
professional
duties
Adaptive
Adaptive
Response
modulation
Mixed
Maladaptive
Experiential suppression: cognitively
denying that one is feeling an
emotion, whether to oneself or others,
and distancing oneself from awareness
of the thoughts and feelings attending
that emotion.
Mixed
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