by Michael Dorf
In my column on Wednesday discussing last week's same-sex marriage rulings, I noted that in his opinion upholding the Louisiana ruling, Judge Feldman dismissed the many contrary rulings by other federal courts as based on "empathy" and "pathos." As I explained, the charge was backwards: once one considers the arguments in play, it appears that the opponents of SSM are the ones who have given in to unreason. Indeed, in recent years and across a range of issues, American conservatives have more generally come to believe their "guts," (to use Stephen Colbert's line), even when the actual facts as evinced by evidence are to the contrary. (E.g., climate change; evolution; U.S. history). That is not to say that there aren't plenty of liberals whose views of the world are faith-based rather than evidence-based; there are; I'm simply making a comparative point.
Nonetheless, the claim that one's opponents have based their views on emotion rather than reason is a very common move, both in the culture generally and in law in particular. And it also tends to be a more common move on the right than on the left. For example, conservatives oppose raising--or in the orthodox view even having--the minimum wage because, they say, markets set wages, so that the minimum wage can only have any effect when the market wage is lower, thus raising costs, suppressing demand, and ultimately increasing unemployment. The argument is right under a certain sort of economic theory but wrong or at best very overstated in practice. However, here I'm less concerned with the employment effect, if any, of minimum wages, than I am with the familiar structure of the argument: Conservatives say that some well-meaning policy based on an emotional reaction of liberals will actually be counter-productive.
Standard views of the law incorporate this use-your-head-not-your-heart logic. Think of the iconic statue of Lady Justice blindfolded so that she does not give in to sympathy. Or think of standard jury instructions warning jurors. They warn jurors not to decide the case based on prejudice, which is fair enough, but they also tell jurors not to decide based on sympathy. Sympathy, like empathy, is seen as antithetical to the cold hard logic of the law.
During my first few years teaching at Columbia Law School, I encountered a reminder of the law's conventional opposition of reason and emotion whenever I looked out my office window, which opened up into the bowels of a famous Jacques Lipchitz statue of Bellerophon taming Pegasus. That office was considered undesirable (which is why I had it as a junior faculty member), and it was later turned into open space during building renovations, but I found the view through the statue interesting (albeit less conducive to quiet thought than my current views of Cayuga Lake and a waterfall). In any event, the statue was meant to symbolize Law (Bellerophon) bringing passion (Pegasus) under its control. As my former colleague Peter Strauss used to note, however, if you look closely at the statue you see something more like the opposite: Pegasus begins where Bellerophon's head should be, suggesting that passion has overtaken reason; Professor Strauss would also note that Lipchitz agreed to create the statue in the mid-1960s but it was not completed for many years, and that the growth of passion relative to reason reflected a certain perspective on the tumult of the period.
I'd like to offer an alternative interpretation of the statue, that may or may not have any connection to Licpchitz's intentions. Putting aside my objection to the premise that humans symbolize reason and other animals symbolize passion, I would argue the merger of Bellerophon as reason and Pegasus as passion symbolizes the inextricability of reason and emotion. The statue as thus reconceived rebukes the familiar notion that law should, or even can, be about thinking divorced from feeling.
The most famous articulation of a view of this sort in constitutional law is Justice Blackmun's dissent in the DeShaney case. There, the majority held that a county social services agency was not accountable for failing to intervene to protect a minor child from severe abuse at the hands of his father. Blackmun wrote that "compassion need not be exiled from the province of judging." But even that account of the view I am expounding understates the role of emotion, because Justice Blackmun conceptualized compassion (or emotion) as separate from reason. His idea was that a wise judge tempers justice with mercy, reason with feeling.
Yet modern brain science shows that emotion and reason are not even separate processes. People with damage to the emotional centers of their brains have great difficulty making decisions and reasoning more broadly. As Rebecca Tushnet argues in a recent Harvard Law Review article, the recognition of the role of emotion in reasoning should have concrete doctrinal applications in the law. Even more broadly, it has implications for how we understand the function of law itself.