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Passion in Legal Argument and Judicial Decision Making: A Comment on Goldberg v. Kelly
Wizner, Stephen
Wizner, Stephen
Abstract
Judges' responses to injustice and human suffering are expressions of their emotional capacity to empathize with or distance themselves from the human stories that give rise to legal controversies. They are also reflections of their intellectual conception of the judicial role. Justice Brennan has referred to the human attribute that moves judges to act to redress injustice and to alleviate suffering as "passion," by which he means the range of emotional and intuitive responses to a given set of facts or arguments, responses which often speed into our consciousness far ahead of the lumbering syllogisms of reason. "Passion," in Justice Brennan's usage, is not mere sentiment, pity, or irrational emotionalism. Rather, it is "[a]ny kind of feeling by which the mind is powerfully affected or moved." It resembles its etymological cognate, compassion—"[t]he feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it."