When judges sometimes change their spots

The iconic Supreme Court Chief Justice Earl Warren was a grievous disappointment to his appointing president, Dwight D. Eisenhower, who famously called his selection “the biggest damned fool mistake I ever made.” 

But Warren didn’t change his philosophy in how he chose to judge during a judicial career. In fact, he had never been a judge before Eisenhower nominated him. He quickly acclimated himself; for example, pushing the Supreme Court to unanimity in Brown v. Board of Education, and greatly enhancing the rights of criminal defendants. Warren had been a relatively conservative California attorney general and governor but somehow he morphed, for whatever reason, into a great liberal on the bench.

Certainly, other justices have disappointed their nominating presidents or confirming senators who expected them to vote in particular ways on pivotal issues before them, only to later see them exhibit a different sense of purpose, or perhaps authority, in their idiosyncratic role as judges.

Many judges who have sat on the Supreme Court or lower courts, though, indeed have changed — perhaps “evolved” in their thinking or worldview — after spending time observing, possibly examining, the ebb and flow of society’s travails. They may determine, even subconsciously, a need to consider a more personally “validating” role than they previously imagined for themselves, in order to somehow make society “a better place.” 

This process doesn’t occur in a specific moment in time, in which someone, particularly a judicial officer, “finds” himself or herself — and it may not be a reversal of one’s personal philosophy of judging at all. It may just be an unarticulated, evolving sense by the individual jurist that, as Justice Benjamin Cardozo brilliantly put it, “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”

Without an objective calculus made here of judges who have been “moved,” one hazards that the internal evolving or morphing that judges experience more often than not favors a more liberalized philosophy of judging. Why, though, has that happened? What inner voice motivates the changed orientation? And was it there before but submerged, or has it newly developed for some reason?

The questions I pose are inspired by a July 29, 2022, article by New York Times columnist David Brooks, titled, “How To Find Who You Are.” He loosely articulates — although not about judges — whether it is wise to sit in a room alone and focus on yourself to get in touch with “the real you” or to self-actualize the “real you.” Brooks posits that a person isn’t a closed system that can be studied in isolation: “A self exists only in relation to something else, while perceiving and interacting with the world.” 

The writer sees us as mimetic creatures — imitators — who learn by imitating what “excellent others” have done before us. Brooks argues that sometimes even friends alone can stimulate man and open up sides of his nature that hitherto have been locked.

The Brooks analysis regarding “finding oneself” as applied to the evolving nature of some judges might seem apostasy — especially to the orthodoxy that believes that judges should simply follow precedent and reflexively leave to the executive and legislative branches of government the role of “doing good” or making society “better.” After all, despite what Cardozo says, should judges allow the needs of a changing society to impact decision-making and how they do their job? Consider that this would mean engaging with litigants with a conscious goal of deciding in favor of the good guy, even if the law unambiguously supports the bad guy or the unsympathetic side of the case he occupies. 

The evolving nature of the thinking processes of some judges may seem almost Darwinian-like — that judges almost begin their judicial career in a certain way to address cases, only to instinctively change along the continuum of their careers. For Brooks it might be like a rock musician who, as life continues, gradually strays from the strident tendencies of hard rock to a more becoming, “mature” sound — and greater meaning.

Perhaps it’s simply a product of aging or the nurturing confidence accorded through tenure or communal recognition that help mold one’s music on the one hand, or legal judgments on the other — for the one using a guitar, the other using a gavel, to foster what he or she really wants to say or do, or wants to say or do now. For Brooks, it’s about how an artist or writer might “find oneself.” On the bench, it’s more directly about how a judge might re-find his or her role in a changing society, or how a “changed judge” even finds that the change lurks inside himself or herself and not somewhere else at all.

Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former member of the New York State Judicial Conduct Commission. He is the author of “ Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.