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The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective


Terry A. Maroney and James J. Gross
Emotion Review 2014 6: 142 originally published online 28 October 2013
DOI: 10.1177/1754073913491989
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491989
2013

EMR6210.1177/1754073913491989Emotion ReviewMaroney and Gross The Ideal of the Dispassionate Judge

ARTICLE

The Ideal of the Dispassionate Judge: An Emotion


Regulation Perspective

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

Vanderbilt University Law School, USA

James J. Gross

Department of Psychology, Stanford University, USA

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

The great political philosopher Thomas Hobbes once wrote that


judges should be divested of all fear, anger, hatred, love, and
compassion (Hobbes, 1651/1904, p. 203). More than three and
a half centuries later, this ideal remains firmly entrenched in
Western legal and political culture. Consider the outcry when
U.S. President Barack Obama suggested he would nominate a
Supreme Court Justice with empathy (Hasnas, 2009, p. A15).
An emotional judge, politicians and the public insisted, is by
definition a bad judge. One U.S. senator went so far as to say
that an emotional judge might put nothing less than our liberty
at stake (Hatch, 2009, p. 13).
But judges are people, and people naturally feel emotions
particularly when exposed to emotionally vivid stimuli, as
judges routinely are. Imagine spending your day listening to
testimony about a little girl whose parents negligently allowed
her to starve; watching a divorcing couple trade insults in front
of their children; then finalizing the adoption of a needy child.
Most of us would cycle between emotions such as disgust,
anger, sadness, hope, and joy. Yet the judge is supposed to feel
nothing.

A long-standing judicial ideal, then, stands in sharp conflict


with the reality of flesh-and-blood judges. This disconnect with
regard to judicial emotionthat is, the range of emotions that
any given judge may experience and/or express while carrying
out his or her job responsibilitiesoperates at an intersection
between law and psychology that is both theoretically rich and
empirically promising.
For several decades, the growing law-and-psychology movement has sought to expose psychologically nave legal assumptions about how humans think, feel, and behave, and to align
legal theory and practice more closely with reliable data (Ogloff,
2002). For example, as eyewitness testimony has been shown to
be surprisingly unreliable, the law governing admission of such
testimony is changing (State v. Henderson, 2011). Similarly,
evidence about emotions nature, function, and impact has
begun to informand replacethe nave theories of emotion
that traditionally have undergirded law (Maroney, 2006). This
has set the stage for considering whether laws expectations of
judges are aligned with contemporary psychological theories
and data. In the case of judicial emotion, we argue that legal and

Corresponding author: Terry A. Maroney, Vanderbilt University Law School, 131 21st Avenue South, Nashville, TN 37203, USA. Email: terry.maroney@vanderbilt.edu

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Maroney & Gross Ideal of the Dispassionate Judge 143

psychological perspectives are needlessly misaligned, and that


the former should be adjusted in light of the latter.
Our primary thesis is that the field of emotion regulation
which is concerned with the processes that influence which
emotions we have, when we have them, and how we experience
and express them (Gross, 1998)provides a useful framework
for understanding how judges do, and should, manage the emotions they inevitably experience. To ask judges to be dispassionate is to ask them to engage in emotion regulation. However, the
traditional legal ideal of literal dispassion creates a regulatory
challenge going both to ends and means.
As to ends, affective science strongly suggests that the legal
ideal of dispassionate judging is harmful, as it privileges the
goal of emotion elimination. Given that emotion now is understood to be a sophisticated, evolved capacity that helps us navigate environmental challenges (Tooby & Cosmides, 2008), the
said goal is normatively suspect. Emotion serves a host of
valuable functions that are important to judgingfor example,
supporting moral reasoning (Keltner, Horberg, & Oveis, 2006;
Young etal., 2010), motivating appropriate and timely responses
to transgressions (Maroney, 2012), and facilitating connection
with the human interests at stake (Brennan, 1988). Indeed,
judges sometimes assert that emotions play an important role
in their work, and they increasingly look to psychology to
illuminate what that role might be (Posner, 2008).
As to meansour primary focus herewe maintain that the
ideal of dispassion discourages judges from developing adaptive forms of emotion regulation. Indeed, it encourages maladaptive behavior. Several decades of empirical data, which we
briefly summarize in what follows, demonstrate not only that
judicial emotion elimination is unrealistic, but also that certain
regulatory strategies are likely to be far more adaptive for judges
than others.
We thus advance a new ideal of the good judge. In our
view, good judges should seek not to eliminate emotion
entirely, but rather to manage emotion skillfully in light of the
diverse professional challenges they face. With this analysis
we hope to contribute to the development of a workable framework within which theorists and empiricists may investigate
both the rhetoric and the reality of judicial emotion. Such
interdisciplinary dialogue holds great promise for scholars of
both psychology and law who have largely failed to collaborate on questions of judicial emotion (Klein, 2010). Extant
treatments of the subject, still few in number, have been generated by and directed to a legal audience (Maroney, 2011a,
2011b; Nussbaum, 1996; Posner, 2001), despite the fact that
emotion and its regulation represent particularly vibrant areas
within contemporary psychology (Gross, 2007, in press;
Koole, 2009). In turn, psychologists understanding of emotion regulation can be advanced by close examination of this
applied context. Further, incorporating emotion will enrich the
psychological study of judges mental processes, an area of
growing interest (Klein, 2010). By showcasing the emerging
dialogue regarding judicial emotion to a psychological audience, we intend to model how disciplinary isolation, when
broken, yields to interdisciplinary insight.

We set the stage for this discussion by considering the role of


emotion in law generally. Once neglected, this intersection is
now the site of robust academic debate and, increasingly, empirical research, trends that recently have expanded to include
examination of judges emotions. We then present evidence that
judges experience emotions, must expend effort to regulate
those emotions, and lack any guidance from legal theory as to
how to do so. The psychology of emotion regulation, we propose, provides such guidance. We bring these interdisciplinary
strands together to identify the regulatory processes that hold
the greatest promise for helping judges manage their emotions
while remaining true to their professional obligations. We close
by pointing to promising areas for future research to further
close the gap between law and the psychological study of
emotion, particularly as applied to judges.

Law and Emotion: Enemies or Bedfellows?


Law traditionally is thought to be based on reason, not emotion
(Bandes, 1999). The underlying assumption, rooted in Western
Enlightenment philosophy, is that emotion is a primitive sort of
reaction unsuited to higher-order pursuits (Maroney, 2011a;
Solomon, 2000). Consequently, legal thinkers often conceptualize law as a mechanism by which rational deliberation is protected from emotions pernicious influence (Maroney, 2006).
Over the last century, however, psychological research has
shown that emotion is necessary to survival, social cohesion,
and practical reason (Tooby & Cosmides, 2008). Inspired by
these findings, recent legal scholarship has begun to consider
the functions of emotions. Such scholarship may focus on a particular emotionsay, disgustand analyze the function that
emotion plays, or could, or should play, in lawfor example, in
the criminalization of sexual behaviors such as necrophilia
(Nussbaum, 2004). A similar approach may be taken with psychological phenomena deeply implicating emotion. Empathy,
for example, might affect how one values a partys claims
(Henderson, 1987), and affective forecasting errors might skew
the legal structuring of future events (Blumenthal, 2004).
Scholars consider how adoption of a particular theory of emotion, such as a cognitive appraisal theory, drives how emotion
ought to be understood in legal contexts (Kahan & Nussbaum,
1996). Conversely, scholars also consider how a particular theory of law might affect how law operationalizes emotion. A lawand-economics perspective, for example, might treat emotion as
a predictable factor in the personal costbenefit analyses on
which legal rules are premised (Huang, 2000). Focusing on a
specific legal doctrine allows a tight inquiry into how emotion
plays out in that domain, such as capital sentencing (Bandes,
2009) or the law of evidence (Brown, 2011). Finally, scholars
have begun to interrogate emotions impact on laws dramatis
personae, including legislators, jurors, defendants, witnesses,
lawyers, and judges (Maroney, 2011a, 2011b). Whichever
approach is taken, the overarching goals of law and emotion
scholarship are to illuminate the emotional aspects of legal
problems, investigate these aspects through interdisciplinary

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144 Emotion Review Vol. 6 No. 2

analysis, and integrate that understanding into normative


proposals (Abrams & Keren, 2009).
Our present project concerns a particular legal actor, namely
the judge, and positions itself in opposition to an entrenched
theory of law, one that insists that good judging is contingent on
the elimination of emotion. It takes on an emotional phenomenon, that is, the process by which emotion is regulated. Finally,
it adopts a set of theories, based in the contemporary affectivescience literature, as to the relative costs and benefits of the
methods by which humans regulate emotion.

The Reality of Judicial Emotion


Laws expectation of dispassion reflects an aspiration as to how
judges ought to behave. Dispassion is thought to facilitate unbiased decision-making and to enable a neutral image that inspires
public trust (Anleu & Mack, 2005). Anger, in particular, may
seem to threaten fairness, impartiality, and decorum; indeed,
Richard A. Posnera judge with the U.S. Court of Appeals and
a prominent legal scholaronce wrote that we ought to
beware the angry judge! (Posner, 2008, p. 110).
To demand dispassion is to assume either that judges are able
to stave off emotional experience altogether or that they are able
to intercept and disable such experience. While the former may
at one time have had intellectual purchase, the contemporary
view is aligned with the latter (Maroney, 2011b). Indeed,
U.S. Supreme Court Justice Sotomayorwhose nomination
prompted the empathy firestormtestified that, while judges
are not robots, they must recognize their feelings and put
them aside (Sotomayor, 2009, p. 71). Thus, the contemporary
legal expectation of dispassion rests on the assumption that
judges emotions are activated by their work, but that they both
can and should isolate and neutralize them. The first of these
assumptions is well-founded; the second often is not.
Judges do in fact experience a wide variety of emotions in
the course of their work. The dispassionate-judge ideal complicates the search for evidence that this is so, as judges face criticism (even derision) for making their reactions known (Posner,
2006). However, a bit of digging reveals judicial emotions
traces. Posner, for example, has acknowledged that it would be
misleading to say that good judges are less emotional than
other people (Posner, 2001, p. 245). Alex Kozinski, the Chief
Judge of the U.S. Court of Appeals for the Ninth Circuit, has
spoken frankly of a case that evoked deep feelings of fear and
dread, as he compared the defendants failings with his own
(Kozinski, 1997; Maroney, 2011b). A survey of Australian magistrates showed that emotional challenges characterized courtroom working environments. As one described it, judges cannot
help but be affected by seeing absolute misery passing in front
of you day in, day out, month in, month out, year in, year out
(Anleu & Mack, 2005, p. 614). Reported legal cases, media
reports, and even courtroom videos are replete with examples of
judges becoming irate with incompetent attorneys, disobedient
witnesses, defiant defendants, and even one another (Maroney,
2012). One Justice of the Wisconsin Supreme Court actually
accused another of choking her during a heated professional

argument (Maroney, 2012). Emotionless judges are mythical


beings, like Santa Claus or Uncle Sam or Easter bunnies (US
v. Ballard, 1944, p. 94).
It is also true that, by and large, judges appear to think it
important to put such emotions aside, and they frequently
attempt to do so. One, for example, stated that he must disregard
the fact that the juvenile defendants wretched life circumstances made [his] heart weep (Commonwealth v. White,
2006, p. 658). But putting emotion aside is no easy matter. A
criminal-court judge in Minnesota described nearly bursting
into tears when listening to a victim impact statement and having to deliberately compose himself (Schuster & Propen, 2010).
One Australian family-court magistrate reported frequent feelings of sadness and having trouble walking away from her
work (Anleu & Mack, 2005, p. 613). The surveyed magistrates
made clear that they consider this a difficult, and unacknowledged, form of work (Anleu & Mack, 2005)what Hochschild
would call emotional labor (Hochschild, 1983).
Given the dispassionate-judge ideal, it is not surprising that
judges report feeling inadequately trained and supported in their
emotional labor. An Australian judge reported feeling forced to
choose between remaining too emotionally sensitive or growing
a skin thick as a rhino, either of which would impede job performance (Anleu & Mack, 2005, p. 612). Indeed, the myth of
dispassion appears to make judges emotional labor more difficult. Minnesota judges complained that because the legal system aims to strip away emotions, they become insulated and
numb (Schuster & Propen, 2010, p. 89).
Judges experience emotion, expend energy to cope with it,
and find that effort difficult. Part of the difficulty is that law
offers them no guidance. For this, we need to turn to the
psychology of emotion regulation.

An Emotion Regulation Perspective


on Judging
An emotion regulation perspective begins with the assumption
that humans necessarily are emotional at times, and focuses on
how we manage those emotions (for an overview and metaanalysis, see Webb, Miles, & Sheeran, 2012). Management is
essential because, despite our contemporary appreciation of
emotions value, emotions are not always helpful. An emotion
may be too intense, as with the fear of failure that sometimes
paralyzes musicians, or not intense enough, as with the cold
(inhuman) lack of empathic response in the psychopath.
Emotions may also be of the wrong type, as when one reacts to
a friends achievements with jealousy. Skill in bringing the
experience and expression of emotion more in line with ones
goals is a critical facet of emotional intelligence (Wranik,
Barrett, & Salovey, 2007, p. 393). Further, sensitivity to and
compliance with cultural emotion norms advance social acceptance and group cohesion (Beer & Lombardo, 2007).
Emotion regulation is particularly essential at work, where
one is expected to feel and display emotion differently than in
private life. Flight attendants, bill collectors, social workers,

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Maroney & Gross Ideal of the Dispassionate Judge 145

and college professors operate within distinct emotional


cultures; indeed, all occupations construct emotion norms,
conformance with which influences workplace success
(Hochschild, 1983; Steinberg & Figart, 1999). The dominant
norm for those in professional occupationslike lawis
some level of dispassion, which tends to confer societal confidence and respect (Anleu & Mack, 2005, p. 599). Doctors, for
example, historically have been socialized toward an ideology of affective neutrality (Smith & Kleinman, 1989, p. 59).
When judges try to achieve dispassion, they arelike doctorsengaging in emotion regulation to attain and project
professional competence.
What form might such regulation take? The commonly used
process model divides emotion-regulatory processes into
five families, each targeting a different stage of the emotiongenerative process and leading to a distinct profile of experience
and expression (Gross, 1998). Another approach proposes that
regulatory efforts target one of three essential aspects of
emotionattention, knowledge, or embodimentin order to
serve one of three functionshedonic, goal-oriented, or personoriented (Koole, 2009). These (and other) models are largely
mutually compatible: both distinguish cognitive reappraisal
(which modulates knowledge) from expressive suppression
(which modulates response), and both acknowledge a range of
motivations (Webb etal., 2012).
Using the process model, it is possible to identify and define
specific strategies and substrategies within the broad families,
and to map onto that integrated model the extant data. For
example, attentional deployment might consist of either distraction or concentration, while response modulation might consist
of suppressing either the experience or the expression of emotion (Webb etal., 2012). It is also possible to use this framework
to analyze complex emotion regulation approaches, such as
mindful acceptance, which may include several specific strategies, such as attentional deployment (directing attention to
thoughts and feelings) and cognitive change (adopting a neutral,
curious stance rather than negatively evaluating those thoughts
and feelings).
No regulatory process is by its nature good or bad; all
have both occasional utility and maladaptive manifestations, the
difference being largely dictated by context (Gross, 1998).
Attempts to influence emotions also may have paradoxical or
unintended effects, just as efforts to influence thoughts do
(Gross, 1998). Translating the emotion-regulation literature to a
real-world context, then, requires close attention to any given
strategys relative dangers, costs, and benefits, given the
constraints and goals at play within any particular context.

Judicial Emotion Regulation


Judges can, and likely do, make use of many, most, or even all
of the emotion-regulation strategies embraced by the process
model. But these strategies are not all equally well-suited to the
judging context. By considering the unique features of that context, we predict which strategies will likely be more or less
adaptive.

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

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146 Emotion Review Vol. 6 No. 2

to influence others emotional experience and expression is a


critical judicial function. Judges routinely decide whether to
expose jurors to vivid evidence, balancing its informational
value against a prediction as to its emotional impact (Federal
Rule of Evidence 403). They actively manage emotional displays in the courtroom by allowing crying victims to take
breaks, ordering lawyers to argue quietly and respectfully, or
having disruptive spectators removed. Situation modification
for the benefit of others may not address the judges own
emotion-regulatory needs. To decide whether jurors should be
allowed to view gruesome autopsy photos, she must look at
them closely herself. Though she can allow a purported victim
of child sexual abuse to testify outside the defendants presence
if doing so will spare that witness serious emotional trauma
(Coy v. Iowa, 1988; Maryland v. Craig, 1990), she cannot avoid
the defendant no matter how repugnant she finds him. In
managing the emotional experiences of others, the judge must
place herself squarely in the situations whose effects she is
attempting to control.

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

unmotivatedshe may feel sympathy rather than anger. She


might also decide to conceptualize her role solely as facilitating that defendants recovery, lessening her emotional investment in his employment status. Similarly, a judge who gets
angry when attorneys are late, or when a cell phone goes off
in the courtroom, can remind herself that busy lawyers often
encounter unexpected delays, and that forgetting to silence a
cell phone is common even among conscientious persons
(OBrien, 2004).
A second sort of cognitive change, that of deliberate
perspective-taking (Webb etal., 2012), also holds promise for
judges. Empirical research shows that perspective-taking helps
even laypersons achieve relative emotional neutrality.
Experimental subjects asked to view disturbing images with
the detached interest of a medical professional, and to think
about them objectively and analytically rather than as personally, or in any way emotionally relevant to them, reliably feel
and display fewer emotions than control subjects; they also
display enhanced memory of those images (Richards & Gross,
2000, p. 415; see also Hayes etal., 2011). A meta-analysis
confirms that perspective-taking has some efficacy in altering
emotional responseindeed, its small-to-medium effect size
approximates that of changing ones ideas about the underlying
stimulus (Webb etal., 2012).
Adopting a professional attitude is a form of cognitive precommitment that can change how the mind processes stimuli.
To a doctor, a wound becomes less disgusting than informational. Similarly, competent judges learn to treat vivid stimuli as
professionally relevant rather than personally provocative. Such
an orientation helps the judge process stimuli through the lens
of specific goalsfor example, discerning the autopsy photos
informational valueand that cognitive lens can change the
stimulis emotional salience. Indeed, it is a reasonable hypothesis that if in the described experiments one were to substitute
the word judge for medical professional, the laboratory outcomes might be identical. Perhaps the dispassionate-judge ideal
has acquired such cultural traction because it is thought to
encourage judges to regulate emotion by taking a third-person
perspective in all instances.
The perspective-taking function of the dispassionate-judge
ideal is, however, likely of only intermittent utility. Laboratory
studies show that the technique is effective during a short period
of time when the emotional stimulus is anticipated. In the reallife, fluid, and unpredictable situations facing judges (and doctors), they are likely to become emotional before they are able
to start trying to control these emotions, which may limit the
effectiveness of cognitive change (Sheppes & Meiran, 2008).
To be sure, judges, like doctors, may become habituated to
recurrent triggers; they also will be more practiced at adopting
the desired perspective. Still, every judge will encounter situations that puncture even the most practiced professionalism.
One judge, apparently chagrined after being captured on camera
yelling angrily at a mother accused of child neglect, reflected: I
reacted humanly; Ill try not to do that in the future (Maroney,
2012, p. 1242). Another judge, after sentencing a defendant
(convicted of child rape) who repeatedly called him an obscene

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Maroney & Gross Ideal of the Dispassionate Judge 147

name, candidly acknowledged that he lost [his] cool (Schuster


& Propen, 2010, p. 93). Such reports are consistent with evidence that intense negative emotions, such as anger, are relatively harder to control, including by way of cognitive change
(Webb etal., 2012).
It is reasonable to conclude, then, that cognitive change represents an important strategy for judges as it can alter the meaning and perceived personal significance of stimuli, but that
cognitive strategies cannot be relied upon to extinguish judicial
emotion, particularly in novel or highly charged situations.

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

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148 Emotion Review Vol. 6 No. 2

a similar range of potential benefits for judges as it does for


people more generally. Unfortunately, emotional disclosure is
highly stigmatized in judges (Posner, 2006), likely reducing
their use of this strategy and certainly reducing the openness
with which they do so.
However, as do all emotion-regulation strategies, disclosure
has potential downsides. Using declarative language to describe
emotional experiences and reactions can be destructive, as when
one spreads messages of hatred or vitriol. Ironically, the judicial
emotion whose expression is least stigmatized is anger
(Maroney, 2012). U.S. Supreme Court Justice Antonin Scalia,
for example, is known for the anger and even contempt with
which he infuses his dissents (Wrightsman, 1999). Anger is a
powerful, confrontational emotion, one that generally imputes
blame to a fellow human being; it therefore has unique potential
to fray social bonds (Maroney, 2012; Potegal & Novaco, 2010).
Moreover, giving voice to anger sometimes increases its intensity, rather than simply failing to decrease it (Bushman, 2002).
Judges who directly express angerparticularly if they do so
vehemently and frequentlyrisk irreparable damage to their
reputations, impairment of important relationships with colleagues, and accusations of abuse and misconduct (Maroney,
2012). The same may be said of expressions of contempt, which
invariably communicate a belief in the objects inferiority
(Maroney, 2012). Emotional disclosure, then, can be highly
adaptive or concretely destructive, depending on the judges
objectives for disclosure, the manner of disclosure, and the
emotion at issue.

A New Ideal: The Emotionally Well-Regulated


Judge
Judges have emotions. But what is crucial is what they do with
these emotions. Our analysis, whose hypotheses are summarized
in Table 1, suggests that the emotion-regulation strategy most
likely to be both appropriate and effective for judges is cognitive
change. Cognitive change promises a tool with which judges
may harness the power of reason, enabling them to perceive (and
potentially rethink) their underlying appraisals and encouraging
them to interpret stimuli through a professional lens. Emotional
disclosure often will be positive as well, as it may provide an
opportunity to enlist others perspectives in processing, rethinking, learning from, and coping with work challenges. However,
certain forms of disclosuresuch as a judge using a newspaper
interview to share publicly his hatred for a colleague (Maroney,
2012)can be destructive. Situation selection and modification,
as well as attentional deployment, are likely to have some utility,
but often will be either unavailable or in conflict with job requirements. Behavioral suppression is sufficiently costly that it should
be reserved only for situations in which it is necessary to extrinsic emotion-regulation duties. The evidence also strongly suggests that experiential suppression is a particularly poor choice.
Finally, given the range of situations judges encounter, flexibility
is judges greatest assetas it is for all humans (Eisenberg,
Hofer, & Vaughan, 2007).

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.

Directions for Future Research


We have proposed that the insights of affective science are
highly relevant to understanding how judges meet the daily
challenge of regulating emotion. We further have integrated
those insights into new theory of how judges should meet that
challenge. The exercise reveals promising directions for future
research.
First, empirical research on judges emotions remains scarce.
Much of the extant evidence is accessible only through what
might be described as a treasure hunt, trolling through judicial
opinions, media reports, and the like. We could learn an enormous amount were we to study judges directly, exploring their
perceptions of the emotional aspects of their work. In addition
to the two small studies we reference (Anleu & Mack, 2005;
Schuster & Propen, 2010), we are aware of only one such effort.
A team of Swedish researchers has received funding to analyze
judicial emotion through observation and qualitative interviews
(T. Maroney, . Wettergren, & S. Bergman-Blix, personal communication, April 30, 2012). The theoretical model we propose
could both justify and inform such empirical investigations.
Such research may illuminate critical contextual factorsfor
example, hearing criminal rather than civil cases; working in
relative isolation (as U.S. trial judges do) or in a group (as U.S.
appellate judges and many European trial judges often do); and
operating under an inquisitorial or adversarial structure. The
emerging literature on group-level emotional processing and
experience (Hess & Kirouac, 2000), as well as on the sociology
of emotion (Kemper, 2000), would be highly relevant to these
questions. Exploration of individual differences might advance
understanding of judicial temperament. Comparative work
might yield important insights into the role of culturally divergent social constructions of judging. In addition to advancing

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Maroney & Gross Ideal of the Dispassionate Judge 149

Table 1. Judicial emotion regulation processes and their hypothesized level of adaptiveness
Process

Example in judging context

Situation
selection

Choosing court in which to serve based Mixed


on anticipated emotional impact of
cases likely to be heard in that court.
Conflicts with
Choosing individual cases based on
likely emotional impact.
professional
duties

Likely
Rationale
adaptive value

Altering the external attributes of an


emotion-provoking situation, such as
by limiting the length of testimony;
barring admission of evidence; or
controlling the content of attorney,
witness, and spectator speech.
Focusing only on those aspects of
a case as tend to evoke a desired
emotion.

Mixed

Distraction by thinking of other things


during exposure to evocative stimuli.

Introduction of alternative sensory


stimuli that share attentional space,
such as music, art, comfortable
furnishings.
Thinking about an emotional stimulus
so as to change its meaning, personal
relevance, or goal congruence.

Conflicts with
professional
duties
Adaptive

Situation
modification

Attentional
deployment

Cognitive
change

Conflicts with
professional
duties

Adaptive

Precommitting to thinking about


anticipated emotional stimuli in
as neutral a fashion as possible;
perspective-taking.

Adaptive

Response
modulation

Behavioral suppression: preventing


the face and body from manifesting
characteristic emotional expressions,
such as grimacing, smiling, trembling,
or turning away.

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.

Emotional disclosure/social sharing.

Mixed

Not consistently available: Judges cant always choose court of appointment,


and many courts are of general jurisdiction and hear diversity of cases.
Judges are permitted to avoid specific cases only for a limited set of
reasons, including anticipated emotional impact, only in extreme cases (e.g.,
lawsuits involving close family members); even judges with discretionary
jurisdiction (e.g., the U.S. Supreme Court) must hear cases with range of
emotional salience.
May be both allowable and helpful in some situations where judge is seeking
to control her own experience, for example, delegating to her clerk the task
of out-of-court communication with an obnoxious attorney; but often will
conflict with extrinsic regulation duties, as judge must fully engage with
many provocative situations in order to determine whether and how they
should be altered for the benefit of other participants, such as jurors.
Judges must attend closely to all relevant aspects of a case, even those that
evoke unwanted emotion. They often must make quick, largely unreviewable
judgments about ongoing situations, and must notice legal and factual
issues that other participants might ignore or avoid.
Distraction will prevent the judge from perceiving, remembering, and acting
on the basis of potentially important information.
Marginal distractors can decrease anxiety and enhance judges comfort level,
potentially boosting performance and avoiding burnout.

Can assist judge in recognizing the appraisal underlying an emotion, and


seeing whether that appraisal is factually accurate and appropriate in light
of her professional role. If it is, she can take the emotion as a helpful guide
to action, and/or seek to modify her response to it. If it is not, the judge
can try to commit to a different appraisal.
By focusing on her professional role, the judge can remind herself of her
unique relationship to the stimuli; for example, she will look at autopsy
photos with the specific task of evaluating their possible impact on the jury.
Focus on that task interrupts the natural emotional reaction and allows for
goal-oriented cognitive engagement.
Controlling emotional behaviors is sometimes necessary to (a) model calm
and decorum, and (b) prevent others from perceiving the judges appraisal
of situations in a way that might bias their perceptions and judgment.
However, the effort will make the judge less effective in other tasks, will not
directly regulate the underlying emotion (particularly if it is negative), and
may increase physical arousal.
Judges will become less able to recognize and respond to their work-related
emotions. The physiological arousal associated with suppression, when
coupled with cognitive disengagement, can lead to unfair misdirection, such
as blowing up over small courtroom infractions. Over time, judges are in
danger of negative physical and mental health consequences, which can lead
to burnout. Consistent suppression can manifest in arrogance, leading judges
to treat others with disrespect and insensitivity.
Judges who feel able to acknowledge and discuss their work-related
emotions with others, whether in private or public, will be more able to
reappraise or accept those emotions. Communicating emotion, such as
when a judge tells a misbehaving attorney why she is angry with him, can
prompt needed behavior change in others. However, judges who freely and
frequently express anger risk damaging important relationships and even
acting abusively.

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150 Emotion Review Vol. 6 No. 2

our understanding of this understudied area, empirical research


could facilitate development of professional training programs.
Second, research could explore the parallel between law and
medicine. Doctors emotions have long been as stigmatized as
judges, and research suggests that medicines historical commitment to dispassion has been just as paralyzing. Canadian researchers found that oncologists believed emotional detachment was
expected of them and struggled with grief that felt shameful and
unprofessional; this combination impaired quality of care
(Granek, 2012). Despite such findings, medicine is several steps
ahead of law. Medical pioneers have begun to cultivate doctors
emotional intelligence through professional training and
changes to the medical-school curriculum; such efforts show
promising results (Grewal & Davidson, 2008; Satterfield &
Hughes, 2007), and might be adapted to the judging context.
Finally, emotion researchers and legal scholars ought to
explore collaborative partnerships such as the one we attempt
to model here. Given the many legal contexts other than judging
to which affective science is relevant, the possibilities are varied
and rich. This interdisciplinary effort promises to change the
relationship between law and emotionand, by extension, law
and psychologyfrom one of frequent conflict and tension to
one of growing harmony and synergy.

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