Just Listening: The Equal Hearing Principle and the Moral Life of Judges

Abstract

In Laird v. Tatum, 409 U.S. 824, 834 (1972), then-Justice Rehnquist famously declined to recuse himself in a case in which he had been intimately involved, and about which he had spoken publicly. In a spirited defense of his position, he wrote: “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” The point is an important one. Clearly, we do not think that judges should have minds that are totally unformed. On the other hand, open-mindedness or impartiality is universally recognized as a critical component of judicial decision-making. This essay seeks to explore a question at the heart of the judicial process: To what extent do we expect judges to have an open mind about difficult questions of law, or, at least, to be able to give a fair hearing to interpretations of law with which they might be predisposed to disagree? Or, more generally, what do we expect of judges in their decision-making?The essay proceeds to consider this question through a discussion of two novels: The Heather Blazing by Colm Toibin and The Children Act by Ian McEwan. The main character in The Heather Blazing is an Irish High Court judge who decides three significant cases in the course of the novel. The main character in The Children Act is an English High Court judge who also decides three difficult cases during the course of the novel. Through a close reading of the two novels, the essay explores what it is that we expect of judges, and, in particular, how we expect them to strike the balance that is inevitably required to be struck between open-mindedness and the (sometimes false) sense of certainty that comes from expertise. Among other things, the essay reflects on Justice Holmes’s observation that a key difference between his and Justice Brandeis’s approaches to their work was that Justice Brandeis wanted to know as much as he possibly could about a case, whereas Justice Holmes “wish[ed] to know as little [about a case] as [he could] safely go on.”