“Justice is what the judge ate for breakfast.”
— Judge Jerome Frank
Nobody really knows how judges make up their minds. We all say our decisions are determined by the “law,” whatever that means. Some claim the law is an unsparing instructor from within its own words and original writers, regardless of modern circumstances or consequences. Justice Antonin Scalia purportedly promulgated this “originalist” view the most, and definitely did not spare his critics. Others say the legal system is its own set of rules without regard to moral or social considerations, as long as it follows its own legitimate constructs. Whether a law is good or bad is not part of the legal system, the claim says, as long as it exists from established authority, all of which seemingly supports originalism. This has been called “legal positivism,” although no one is positive about what it means in any practical context. Still others, such as Judge Jerome Frank, subscribe to “legal realism,” which depicts originalists as coldly rational Dr. Spocks who ignore the realities of politics, experience and morals and fail to account for biases. They claim to determine “law as it is, rather than as it should be.” But when a lawyer says “Judge, it is what it is,” what are we supposed to do then?
In 2010, three Columbia University researchers worked with the Israeli justice system to test Judge Frank’s breakfast adage. They looked at over 1,000 rulings made in the courtroom, over almost a year, about probation and parole. The results showed, as blogger Alex Mayyasi wrote on the website Priceonomics, that “the judges’ decision-making ability was as lousy as a kindergartener’s focus right before a snack break.” The research study charted favorable and unfavorable rulings by the time of day. The data overwhelmingly showed that favorable results for defendants peaked at the beginning of the day and immediately after lunch — and plummeted the rest of the day.
Judge Frank’s adage was meant to refer to the practical realities and randomness of decision-making — but this study actually suggests that actual food promotes favorable decisions. Certainly other legal analysts and social scientists can criticize the study as lacking sufficient causal correlation and not accounting for lots of independent variables (like general fatigue at end of morning or afternoon, details of individual defendants’ background, etc). Like so many of these research studies, the results are only suggested theories for further testing.
So we do not know (yet) whether or how food actually affects judges’ decisions. But what if we did? What if we could establish that the nourishment of a judge was integral to his or her ability to judge competently? What if we could figure out what foods or what preparations were optimal? Wouldn’t justice be better served if we could then determine the nutritional regimen of judicial officers? It might become a matter of due process that judges have to eat a certain way. It might plant the seeds for an entire field of, shall we call it, “positive culinary realism.” Then we could grow our thinking to determine the right foods, the right recipes, the right diets. The harvest might be unlimited. One could imagine a book titled “Diets for Da Judge.” There might be concoctions such as the Fairness Frankfurter, the Compassionate Cocktail (that would be my favorite), or maybe the Common Sense Cucumber Salad.
On the other hand, perhaps just a mandatory judge nourishment schedule would uphold the system as it should be, regardless of specific food items. Since our legal standards descended from old English practices, let us presume that it is best to pick from corresponding habits about when to eat and drink.
Everyone knows about the English tradition of tea, but not everyone knows about the very closely related tradition of The Seven Daily Hobbit Meals. When one goes to Middle-earth, one may live accordingly:
7 a.m.: Breakfast
9 a.m.: Second Breakfast
11 a.m.: Elevenses (tea and a snack)
1 p.m.: Dinner
4 p.m.: Afternoon Tea (presumably with tortes)
6 p.m.: Supper
This schedule seems to comport with what the research study was suggesting.
Overall, the way we judges make decisions depends entirely on being human — that is, we all do it different ways. Some are guided by the refreshing intellectual treats served by lawyers in their pleadings. Others are led more by their own countryside excursions to find the fruits and vegetables of their own research garden. But most jurists start with a general bite of the whole presentation, just to see how it tastes, then decide how they like it or how much they want. Regardless, by the end of the meal, the judge is nourished and ready to do the dishes. That’s when the decision gets made. So what factors, foods or philosophies make the difference? The judge may not know — and neither should we. But lawyers should always make sure they serve objections sunny side up, please.•
• Judge David J. Dreyer has served on the Marion Superior Court for over 21 years. He is a former member of the Board of the Indiana Judges Association.