0:15

Pushkin. One

0:19

of the cooler things that happened in the last few

0:21

decades is that scientists have decided

0:23

that emotions are worth studying,

0:27

and they found new ways to study them,

0:30

not just in people, also in animals.

0:33

The guy who's taken the lead with the animals is

0:35

a Dutch primatologist named

0:37

Franz Dawal. You know, emotions

0:40

are sort of taboo topic. They used to

0:42

be, at least, and so most

0:45

of the time we don't explicitly discuss

0:47

them. We discussed the behavior

0:49

that they produce, but not the emotions

0:52

themselves. That's Dwall

0:54

himself. He's Dutch but works

0:56

in Atlanta at Emory University. When

0:59

he started out, no one thought you could

1:01

study the emotions of animals. A

1:04

lot of people just assumed that animals didn't have emotions

1:07

and scientists shouldn't care if they did, but

1:09

not supposed to talk about mental states or

1:11

feelings or planning or

1:14

thoughts or whatever. And so

1:17

there was a taboo for one hundred years on talking

1:20

about that. And it's

1:22

only in the last twenty years or

1:24

so that taboos being

1:26

lifted, and that the more and more scientists are

1:28

open about internal states, meaning

1:31

emotions. They so clearly drive

1:33

behavior in both animals and people,

1:36

which brings me to Professor the Wall's most

1:39

famous experiment. I worked

1:41

with capuccin monkeys for a long time. We

1:43

noticed in our lap that the monkeys were always

1:46

very keenly watching what somebody else would

1:48

get, not just what they themselves

1:51

get for a task, but also what somebody

1:53

else is getting. So the final

1:55

experiment that I want to mention to you is

1:57

our fairness study. This is

1:59

the Wall's ted talk about that experiment.

2:02

Two monkeys in cages side

2:04

by side. The cages

2:06

are plexiglass, so the monkey

2:09

can see each other and the scientist.

2:12

They're given treats for performing a task.

2:15

The task is to take a rock from a researcher

2:18

and hand it back to her. It doesn't

2:20

sound so hard, but then you're

2:22

not a monkey. The treat is

2:24

a slice of cucumber. And if you give

2:26

both of them cucumber for

2:29

the task, the two monkeys side beside, they're

2:31

perfectly willing to do this twenty five times

2:33

in a row. So cucumber, even though it's really

2:35

only water in my opinion, but cucumber

2:38

is perfectly fine for them, perfectly

2:41

fine. But then a

2:43

few rounds in. One of the monkeys

2:45

hands back the rock, and the researcher

2:48

gives that monkey a grape, not

2:50

a cucumber. Monkeys

2:52

really like grapes, and the other one

2:54

sees that The other monkey stares.

2:57

She waits her turn. She

2:59

gets the rock and hands it back, gets

3:02

again cucumber. She looks

3:04

back and forth between the cucumber and

3:06

the other monkey.

3:09

She just chucked the cucumber back at the researcher.

3:12

Then she goes ape shit. The

3:17

researcher keeps giving grapes to one monkey

3:20

and cucumbers to the other. She

3:23

tests a rock now against

3:25

the wall if she needs to give it to us, and

3:28

gets cucumber again. The

3:31

monkey that gets cucumber explodes

3:33

in anger, climbing the walls of the cage,

3:36

throwing whatever she can get her paws on

3:38

at the researcher. So this is basically

3:40

the Wall Street protest that you see here. At

3:44

some deep level, monkeys

3:47

expect life to be fair, and

3:50

so do we. The

3:52

human sense of fairness is not just some sort

3:54

of mental product some

3:56

sort of countient philosopher

3:59

would say. Is that it's a principle that

4:01

we have arrived at by

4:03

reasoning and logic or something like that. No,

4:05

no, there's there's a real emotion behind

4:08

it. And that's why the behind

4:10

all these moral principles that we have. This

4:13

experiment isn't just about

4:16

unfairness. To have any

4:18

effect at all, the unfairness

4:20

has to be out in the open. The

4:23

monkey getting the cucumber needs to see

4:25

the monkey getting the grape. So

4:28

it's also about the relationship between

4:30

transparency and unfairness. I

4:34

sometimes wonder what would happen if people ever

4:36

got to see all the unfairness in life,

4:39

if say, some magical new technology

4:42

came along that generally increase

4:44

the transparency in the world. Oh

4:48

wait, it just did. My

4:53

name is Michael Lewis, and this is

4:56

against the rules. I show about

4:58

the decline of the human referee in American

5:00

life and what that's doing to our

5:03

idea of fairness. I

5:14

was talking the other day with a woman named Musa

5:16

sever She'd grown up

5:18

in Slovenia when it was part of Yugoslavia,

5:22

and she was there in the nineteen nineties when

5:24

Yugoslavia fell apart. Hundreds

5:27

of thousands were killed, millions

5:29

more persecuted. Musa

5:32

escaped, but with the new conviction

5:34

that nothing was more important than

5:36

the rule of law. Justice.

5:39

She wanted everyone everywhere to have

5:41

it. In two thousand and three,

5:44

she moved to Uzbekistan. Uzbekistan

5:47

was not an obvious upgrade on Slovenia,

5:49

even at its most terrifying. Well,

5:54

they had a pretty nice constitution,

5:57

but that was mainly on the paper.

5:59

Security services were

6:02

controlling everything. A

6:04

group called Freedom House had sent Musa

6:06

to document what was happening in Uzbeka

6:09

stands prisons. The prisons

6:11

had become the Uzbek government's

6:13

torture chambers. They had

6:15

cattle prods and rooms where

6:17

they hung you from your wrists and ankles, other

6:20

rooms where they beat you with robber hoses and

6:22

smothered you with plastic bags, all

6:25

done in total secrecy, just

6:27

like the trials that had sent people to prison

6:29

in the first place. And what about the judges

6:32

in the courtroom, where the judges were kind of independence?

6:34

Did they have? No?

6:36

No, no no. That was

6:41

the old legacy of the Soviet

6:43

system made

6:45

prosecutors totally in

6:47

charge of everything. The government.

6:50

Prosecutors were in charge. The

6:52

judges had zero power. They

6:55

just took orders from the prosecutors. The

6:58

orders were simple. Any

7:00

person who gets arrested is guilty.

7:03

As soon as you did something

7:05

that got the

7:08

police to arrest, that was it.

7:10

You couldn't get out. Can you just

7:12

describe like you're describing to a child,

7:14

would it felt like to live in that system?

7:18

Well, one person didn't

7:20

matter. You didn't matter

7:22

at all. So

7:25

the only way how people tried

7:27

to preserve their safety was

7:29

they didn't stick out in

7:32

any way. People had

7:34

to stay hidden. Not

7:36

because the Uzbeks didn't have any laws.

7:39

They had their nice little constitution. What

7:42

they lacked was an idea at

7:44

the center of any system of justice, the

7:47

independent judge, the ref

7:49

in robes, the human being

7:52

charged with ensuring fairness

7:55

in the court of law. When

7:58

you live in a country that doesn't have people like

8:00

that, you wake up every day to

8:02

the same emotion. Fear that there

8:04

was always fearing, Yeah, fear that

8:08

if you don't do what the

8:10

state wants you to do, they could eliminate

8:12

you. The Uzbeks didn't invent

8:15

the police state. They were just more

8:17

enthusiastic about it than most. But

8:20

in two thousand and sixteen something

8:22

changed. Muy

8:30

the president died. That was his

8:32

funeral. He

8:34

was the only president that Uzbekistan had

8:36

ever had, And the new

8:38

president decided amazingly

8:41

and without any great revolution, to

8:43

open things up, to create

8:45

basically from scratch, a legal

8:47

system that included some concept of

8:49

fairness in

8:52

practice that meant handing actual

8:55

power to the people who'd never had any

8:58

The judges the refs,

9:02

which sounds like it should be easy for the judges,

9:04

right, You don't really think of them having to

9:06

learn how to be independent. It's like

9:08

breathing. You do it so long as you're allowed to.

9:11

It turns out that's wrong. The

9:14

younger ones are those

9:16

usually to make a decision on acquittals

9:20

and try to do things right. The

9:23

older ones are still they

9:26

find it hard. So if you're a defendant

9:28

and you walk into a courtroom and you see

9:30

a young judge, you're happier than if you see

9:32

an old judge. Yeah, definitely,

9:35

because only the new judges will acquit

9:37

you. The old guys will still

9:39

assume you're supposed to be sent directly to

9:42

jail. It's as if they don't

9:44

want their independence, or

9:46

as if the Uzbek system doesn't

9:49

know how to grant it to them. The

9:51

Uzbeks have done all kinds of things

9:53

to get the changes to work. They've

9:56

invited American judges to visit to

9:58

teach them about judicial independence.

10:01

They've opened their courtrooms so people can

10:03

watch the trials. Musa

10:05

had this idea of staging mock trials

10:08

so that the old guys could see what fairness

10:10

looked like. So we had two

10:12

trials. On both trials

10:15

that defense won the case.

10:18

That was such a shock the

10:20

team of prosecutors, and

10:23

they sent us the best. Didn't

10:25

you even want to shake the hands with the team

10:27

of defense. They were so pieced

10:30

off, and they would be

10:32

asking what happens to American

10:35

prosecutor when he loses a case?

10:38

Does he lose a job? Is he punished?

10:41

They were an undefeated team up to that point.

10:43

Yes, they never lost. They never

10:46

lost because they were not supposed to

10:48

lose. They're not supposed to lose, right,

10:50

Changing those attitudes must not be

10:53

easy. It's not easy,

10:55

and you know that's why I'm

10:57

there fifteen years. All

11:00

of which is to say that a system of justice

11:02

isn't just a bunch of laws. A

11:05

system of justice lives and dies on

11:07

the emotion it evokes, especially

11:09

feelings about the judges, and

11:11

the judges feelings about their role. So

11:15

here's what happens. We're in front

11:18

of a very hostile judge. The

11:20

judge was appointed by Barack

11:23

Obama, federal judge. These

11:27

feelings can change. They're

11:29

changing right here, right now,

11:32

because he's given us ruling after ruling

11:34

after ruling, negative, negative, negative.

11:37

The uzbeks have picked a funny moment to emulate

11:39

the American system of justice. They

11:42

want transparency, they

11:44

want the people to see the judges at work. At

11:47

the same time, Americans are being

11:49

encouraged to watch their judges more closely

11:51

than ever, and

11:54

what they see is causing some problems. So

12:05

I walked in, and I mean, I think, I think

12:07

I look younger than I am anyway, and so I think,

12:09

you know, I think, you know, I thought a lot

12:11

of people just assumed guy was, you know, in my early

12:14

twenties or something. You know, this is Jeremy

12:16

Fogel. He was once a judge, but

12:18

not just any judge. A

12:20

judge you had a gift for watching

12:23

himself on the job. Presiding

12:25

judge gave me a file and say here's your

12:27

first case. The jury's coming in half an

12:29

hour or something like that. This

12:33

podcast was bound to lead to judges. They're

12:36

too important to ignore, but

12:38

they usually don't have much to say for themselves.

12:41

By law, they're forbidden from discussing

12:43

their cases. By custom,

12:45

they don't typically invite you to get to know them.

12:48

That's why I've come to Jeremy Fogel. He's

12:51

decided that judges have no choice but

12:53

to break their silence because they're

12:55

being watched in new ways, and he's

12:57

sort of taking the lead. Fogel

12:59

was always a little odd for a judge. He

13:02

went to college during the Vietnam War. He'd

13:05

studied religion and wanted to become a professor,

13:08

but the war or switched on something inside

13:10

of him made him want to do something

13:12

practical out in the world. I

13:16

just felt like an academic life was going

13:18

to be too cloistered, so

13:21

law school was kind of something I

13:23

did, almost as an afterthought.

13:26

He became a public defender, taking

13:28

the cases of people who couldn't afford a lawyer.

13:32

He saw the unfairness of the system, the

13:34

crazy inequality, the

13:36

likelihood that it would treat a poor person less

13:38

fairly than a rich person. Jeremy

13:41

was doing what he could directify that, but

13:43

he sensed that he had this thing about him that

13:46

made him less than ideal for the job. You

13:48

can't be the one sided advocate where you

13:50

you just kind of go in and say, well,

13:52

you know, my client's entirely

13:54

right and these people are entirely wrong. I never

13:57

felt comfortable doing that. He didn't like

13:59

taking sides, which is

14:01

a problem if you're a lawyer. You know, there's

14:04

there's lawyers who actually believe their clients

14:07

cases totally right. Then there's people who know that

14:09

it isn't but they can play the role. And

14:12

I wasn't ever really that comfortable

14:14

playing the role at the same time.

14:17

I mean, I was aware of my

14:19

ethical obligations were and so I started to think

14:21

about, well if you what if I were a neutral? A

14:23

neutral we know now how hard

14:25

they are to find others

14:27

who knew. Jeremy Fogel had the same thought.

14:30

In nineteen eighty six, Fogel was appointed

14:32

to be a California state judge.

14:35

It nerve wracking. Well,

14:37

I was really nervous, you know,

14:39

I didn't know what to expect. And no,

14:42

I don't think I don't I know think I ever hit the gavel

14:44

in my life. But but but I just I was never

14:47

in a I was never in a mood where I felt like

14:49

I needed to do that. He wound up running

14:51

a family court without ever once using his

14:53

gavel. He presided over divorces

14:56

and custody battles. It was emotional,

14:59

angry, ugly. If

15:01

a judge had some perverse desire to

15:03

be murdered by the people in his courtroom,

15:06

he'd ask for family court duty. Most

15:08

judges dislike family cord because

15:11

it's the hot zone. Jeremy Fogel

15:13

didn't just like it. He loved it. You

15:16

know, you have people who are quote normal most

15:18

of the time, who when they're

15:20

in the middle of the divorce or not temporarily,

15:22

they're temporarily insane. Right, So

15:25

the ability to kind of step in and bring

15:27

a little bit of order to

15:29

the situation actually was something

15:31

I felt very positive about.

15:34

And how did you do that? I mean,

15:37

I think a lot of it was just just listening

15:39

and trying to figure out what's really going on.

15:41

And you know, they're fighting about who gets the dog.

15:43

You know, they're fighting about who gets the piano or you

15:46

knows, And I just said, it's not about the piano,

15:49

you know, this is this is a power struggle,

15:51

you know. So I would say parties, I

15:53

would bring them in for mediations. They would talk

15:55

to me about this, you know, and so

15:57

you know, you would kind of dig down and you

16:00

could sort of see what the underlying problem

16:02

was, and then you could say, well, how are we gonna how

16:04

are we going to move forward here? You know, how are we going to get

16:07

you folks divorce? Because that's really what needs to happen.

16:10

Right, you're getting a feel for him.

16:12

A born neutral, some people just

16:14

are. Jeremy Fogel thinks

16:17

he caught the trait from growing up with a volatile

16:19

father, from wanting life at

16:21

home to just calm him down anyway.

16:23

Judging suits him. In nineteen ninety seven,

16:26

Bill Clinton appoints him to the United States

16:28

Court for the District of Northern California.

16:31

It's the big time. He goes

16:33

from being one of tens of thousands of state

16:35

judges to one of only two thousand

16:37

federal judges. He's got

16:39

life tenure in this job

16:42

that he totally loves. But

16:44

now he's noticing things and they're

16:46

pulling him outside of himself, causing

16:49

him to watch himself meta

16:51

judging. And it's actually really

16:53

hard to be humble when you're a judge

16:56

because the the everybody's

16:59

countown to you. You're you're, you're wearing

17:01

the robe, and you're on the bench, and everybody's you know, calling

17:03

you your honor and they're you know, there's there's

17:06

a lot of false deference. I think

17:08

a judge you can make huge mistakes

17:10

and still fool himself into thinking that he

17:12

was doing great. Jeremy Fogel

17:14

tried to fight this tendency by not allowing

17:17

himself to forget his most terrible mistakes.

17:20

I mean, the one that always comes to mind was when

17:22

I was doing the Mantle Health calendar and

17:25

this young man was trying to get off

17:27

of conservativeship, and

17:30

the doctors were saying, no, he's managed

17:33

depressive and he would be dangerous to himself, and

17:36

he persuaded me that he was okay,

17:39

and he killed himself the next day. Judging

17:42

forces you to make these horrible life and

17:44

death decisions when you

17:46

really don't know the right answer. Jeremy

17:49

Fogel knows that he's going to be wrong sometimes,

17:52

and so he thinks it's important for the people on the

17:54

receiving end of his judgments to sense his

17:56

humility, his humanity.

17:58

He thinks judges need to be not as book smart,

18:01

but people smart, so that people who

18:03

leave their courtroom feel okay

18:05

with what's just happened. We need a curriculum.

18:08

You need to be intentional

18:10

about what we're teaching judges. What

18:13

kind of judges are we trying to grow? You know, the

18:15

longer Jeremy Foggle is a judge, the

18:18

more worried he becomes

18:20

about the relationship between Americans

18:22

and their judges. He's

18:25

right to be worried. American judges

18:27

are being threatened and challenged and

18:29

exposed as never before.

18:33

You to say, Senator, I would like to start

18:36

by saying, unequivocally, uncategorically

18:40

that I deny each and every

18:43

single allegation against me today

18:45

that suggested in any way that

18:48

I had conversations of

18:50

a sexual nature or

18:52

about pornographic material with

18:55

Anita Hill. Supreme

18:58

Court confirmation battles. They're

19:01

now just a ritual in American culture, but

19:04

they have echoes in the daily lives of

19:06

ordinary judges. Political attacks

19:08

on jeg are on the rise, Physical

19:10

attacks on judges are on the rise, and

19:13

there's this new demand that judges reveal

19:15

more and more of themselves in their lives

19:17

to us. When I was started

19:19

writing the norm was still for the justices

19:22

not to grant many, if

19:24

any, on the record interviews, And

19:27

in fact, the Supreme Court at that time didn't even

19:29

publish transcripts of the arguments

19:32

on the same day, and they would just refer to the court

19:34

rather than an individual justice. That's how impersonal

19:37

the whole thing was supposed to be. In the early nineties. Jeff

19:39

Rosen runs the National Constitution Center

19:41

in Philadelphia, but he used

19:43

to make his living writing these wonderful profiles

19:46

of Supreme Court justices. And

19:48

he's watched even Supreme Court judges

19:51

bow to the social pressure to

19:53

let everyone get to know them. Now the

19:55

transcripts are published on the same day, the justices

19:57

are identified by name, and the justices are writing

20:00

best selling books, and they're appearing not

20:02

only on c spand but on

20:04

the networks, and they're

20:06

opening themselves up to being just as accessible

20:09

is all the other celebrified figures in our celebrified

20:11

culture. Honorable

20:14

the Chief Justice and the Associate Justices

20:16

of the Supreme Court of the United States.

20:20

Something different is going on here than what goes

20:22

on in the Capitol Building or

20:24

in the White House. And you need to appreciate how important

20:27

it is to our system of government.

20:29

Jeff Rosen doesn't approve of any of this. He

20:32

really doesn't approve. He

20:34

thinks that would all be better off if judges retain

20:36

their old mystique, if they

20:38

weren't so human. But

20:40

you know what, it's too late, and

20:43

Jeremy Fogel thinks this might

20:46

be okay. One of the things that

20:48

will help strengthen

20:50

traditional independence is if the

20:52

public understands

20:55

more about judges. People

20:57

don't understand what we do, and

21:00

what you see is that use caricatures, and

21:02

I think the more you can kind of really paint the picture

21:05

and kind of get out there's a job. You know, it's

21:07

like being a doctor, it's like being a teacher, being

21:09

a fighter pilot. I mean, there's a skill set that goes

21:11

with it, and there's a set of values

21:13

that go with it, and that it's inappropriate

21:15

for people to be like making

21:18

death threats. Yeah. So that part of the problem

21:20

with the judge in American life is that he's

21:22

so different from so much else of American life.

21:24

Americans go through life doing what they feel like

21:27

doing right, and it's hard to imagine

21:29

themselves into a headspace where they're doing

21:31

things for some reason other than they want to do them.

21:33

That's right, Americans really

21:35

don't understand refs. Jeremy

21:38

Fogel felt that they needed to, and

21:40

so in twenty eleven, when

21:42

he was sixty one years old, he

21:44

did something that would have surprised his younger

21:47

self. He left the bench

21:50

for this thing in Washington called

21:52

the Federal Judicial Center, created

21:55

by Congress back in the nineteen sixties

21:58

to improve the nation's entire judiciary.

22:02

Jeremy Fogel agrees to run it. He

22:05

thinks he can use the place to train judges

22:07

in better ways, so

22:10

they can withstand the new transparency

22:12

and be better than the caricature as we see

22:14

in confirmation battles. Did

22:17

you consume alcohol during your high school

22:19

years? Yes, we drank beer. My

22:21

friends and I the boys and

22:23

girls. I liked beer. Still

22:26

like beer, And

22:28

I think, you know, judges all over the country are really struggling

22:32

with this. I mean, like, how how do we

22:34

explain to people that know? I mean,

22:36

that's just not who we are, it's not what we do, and it's

22:38

really important that you know that. Where

22:40

do you hear that? I hear it. I just hear it

22:42

from other judges, and I hear it from

22:44

judges as state level and the federal level,

22:47

and you're hearing this in a way you wouldn't have heard it when

22:49

you started your career. That's right. So this is changing.

22:51

It is changing. It is changing. It is something

22:53

that's in the air. Actually, it must be more

22:56

than one thing, because it's new to your nose,

22:59

an entirely new smell. Has

23:05

anyone told you about the what judges you

23:07

for breakfast study? Tell me about it. That's

23:09

Emily Basilon. She's written

23:11

so much interesting journalism about the American

23:14

legal system that the Yale Law

23:16

School has made her a research scholar. Okay,

23:19

so this is at

23:21

this point kind of a famous study in law

23:24

nerd world. Somebody

23:27

looked at the sentencing decisions that judge

23:29

is made right before lunch and

23:32

right after lunch, and they

23:34

found that after lunch

23:37

judges are nicer, and

23:39

before lunch, when presumably they're getting

23:41

a little peckish, they're meaner.

23:44

They give out longer sentences

23:46

before lunch than after lunch. That's terrifying.

23:48

Yeah, it really is, because it feels so

23:51

random, not just random, disturbing.

23:54

I'm not sure anyone ever really believed that

23:56

human beings could be perfectly rational, but

23:58

people who used to sort of believe it, or at least

24:00

pretend to believe it. We created excuses

24:03

for why we didn't need to pay too much attention to

24:05

what was going on inside of judge's minds.

24:08

I mean, they'd be hand picked to make hard

24:10

decisions. How could there be anything

24:12

but good at it. We had a group of judges

24:16

trial court judges in Texas, really

24:18

municipal judges, the kind of folks who see

24:20

traffic tickets and fines

24:22

for restaurants and the like. Jeffrey

24:25

Klinsky teaches at Cornell Law School. He's

24:27

now almost famous for these elaborate

24:30

experiments involving judges, showing

24:32

that when it comes to making decisions, judges

24:35

suck in exactly the same way as

24:37

other human beings. In one

24:39

study, he wanted to see if you could screw up judges

24:42

minds by putting some random number into

24:44

their brains. So he gave them a

24:46

scenario involving a nightclub that

24:48

violated noise ordinances. The

24:50

judges had to figure out a proper fine,

24:53

and for half of them, we called

24:55

told them that the club was named Club fifty eight,

24:57

after its street address. For the other half.

25:00

We told them it was Club eleven thousand, eight hundred

25:02

and sixty six after its street address,

25:04

and the fine was three times as high

25:07

for Club eleven thousand, eight hundred sixty

25:09

six. Two of the judges even in fact

25:11

find the Club eleven thousand, eight hundred

25:14

and sixty six dollars. They thought

25:16

that, well, that's a clever number. Let's put that in and find

25:18

them. You heard it here first, Never

25:21

ever call your establishment club

25:23

eleven eight hundred and sixty six,

25:26

or mention any other random big number

25:28

to a judge in the process of finding you, or

25:31

for that matter, think that the judge

25:33

is any more capable than other human beings

25:35

at checking himself before he screws up.

25:38

Eighty six percent of automobile drivers say they're

25:40

less likely than the median driver to get into a

25:42

car accident. People always

25:44

think they're above average, especially

25:46

when it comes to something they care about. But

25:49

most trial judges care about is

25:51

not having their rulings overturned. So

25:54

we asked them, how likely are you, relative

25:56

to the median judge in this room to be

25:58

overturned on appeal? And

26:01

indeed, eighty seven percent of them said they

26:03

were less likely than the median judge to be

26:05

overturned on appeal. Later

26:07

on, we asked a group of judges, is how

26:10

effective are you at avoiding race or gender

26:12

bias in your decisions? And nine

26:15

of them are better than the median judge at that. There's

26:18

a long list of stuff like this.

26:21

It's the same stupid stuff that all

26:23

people do. The evidence

26:26

has been piling up that judges are

26:28

no more than human at a time

26:30

when being human is maybe less flattering

26:32

than it's ever been. It's

26:41

funny how neatly you can map what's

26:43

happening to sports referees onto judges.

26:46

They've always had their biases,

26:49

we're just getting better at seeing them.

26:51

We now know that sports refs, who are

26:53

made aware of their biases they make

26:56

better calls. Same should be

26:58

true of judges, right, I mean, once

27:00

you know that you send people to jail longer

27:02

right before lunch than you do right after

27:05

lunch, you can start to watch your blood

27:07

sugar. But as

27:09

with sports refs, a lot of people

27:12

clearly believe that judges are getting worse.

27:15

It's as if we've demanded to know the truth without

27:17

realizing we can't handle the

27:19

truth. Wait, it's

27:21

such a paradox that if we become more honest

27:24

about the ways in which someone's

27:27

values and politics inform their judicial

27:29

decisions, that were somehow doing

27:31

them a disservice. I'm talking to Emily

27:33

Basilon again. You know, it's funny. It's

27:36

like the system does much better if

27:38

nobody's paying too much attention to it. I

27:40

think that's absolutely true. I mean, there's something

27:42

useful about the fiction that there

27:45

is a totally separate group of people

27:47

called judges. They wear black robes, they're

27:49

Olympian, they're doing

27:51

their own thing, and they're handing down decisions

27:54

from un high It's not true,

27:56

right, I mean, I really think it's like a kind

27:58

of an idealized

28:01

notion of the law that is essentially

28:03

false, because people's prior beliefs

28:05

and their values do shape the decisions

28:07

they make when they have real choice. Right.

28:10

And Yet I'm torn because when we had

28:12

the fiction that judges were doing some totally

28:14

different thing, it was easier, I think, for

28:16

them to try to measure

28:19

impartiality in that way, to try

28:21

to adhere to that standard. But it's hard

28:24

to imagine how the fiction would be restored.

28:27

Oh yes, it's gone. How

28:30

long have baby judges

28:32

been taught about the importance

28:34

of their emotions since twenty thirteen,

28:38

so this is a new thing. It's a new

28:40

thing. Yeah. Her name is Terry Moroney.

28:43

She teaches LRD Vanderbilt. Jeremy

28:46

Fogo brought her in to teach judges in the

28:48

new program he created at the Federal

28:50

Judicial Center Baby Judge

28:52

School, they call it new

28:55

Judges now learn all about the sorts of things

28:57

they never used to have to think about, like

28:59

the mental errors to which all human beings

29:02

are prone, and their emotions.

29:05

The law has maintained this very odd

29:07

fiction that emotion is a relevant

29:09

to law and that laws all about rationality,

29:12

when pretty much every other discipline

29:14

in the world understands that emotion is

29:16

central to all aspects of human life.

29:19

It's funny because I think historically,

29:22

if you'd ask people, they said, an

29:25

emotional judge can't be as fair as

29:27

an unemotional judge. And what you're saying

29:29

is the emotions are always

29:32

there, and it's the judge doesn't

29:34

recognize them, who can't who won't be fair? That's

29:36

correct. Yeah, The

29:38

emotional lives of judges have been discovered

29:41

at roughly the same time as the emotional

29:43

lives of monkeys. It turns

29:45

out they have a lot in common, which

29:47

is why Jeremy Fogel put emotional

29:49

training at the center of Baby

29:52

Judge School. I wonder if you've going back

29:54

in history and tried to introduce this curriculum

29:56

in an earlier point in the history

29:58

of the judiciary, if people would have responded

30:00

the same way. Said a really interesting thought experiment,

30:03

because when I was a

30:05

California State judge, I was involved in working

30:07

with the California version of the

30:09

FJC and actually

30:12

designed a class that looked

30:14

at this, and the

30:16

general responds from

30:18

judges at that time was, you know, I just

30:20

want to do my job, and you know I

30:23

don't. They didn't. They didn't say anything like I didn't

30:25

I don't have any feelings, but they just said, I

30:27

mean, I don't want to I don't really want to go there. I

30:29

don't need to go there. And if it was

30:31

somehow irrelevant to the job exactly, the

30:37

fiction is collapsing or has collapsed about

30:40

who what a judge is and what's inside

30:42

a judge and how it judge functions, and it's

30:44

going to have to be replaced by something else, right,

30:47

and you're trying to you're trying to work towards what

30:49

it gets replaced by exactly. I mean,

30:51

that's exactly what I'm trying to do. It. The general

30:54

idea of baby Judge School is

30:56

to turn judges into people who can judge themselves

30:58

as well as others, because the job's

31:00

putting these new pressures on judges,

31:03

and if judges don't learn to cope, the

31:06

pressures will crack them and make the

31:08

entire situation and even worse. And

31:10

when you start to baby like everybody else, you're gonna get treated

31:12

like that. That's exactly what the problem was. And I

31:15

think that's what really upset me and ended upset a lot of judges,

31:17

I know, and your respective of

31:19

ideology, you know. But then so then

31:21

what's the you know, what's the remedy or

31:24

is there a remedy or you know, it's it

31:27

just was we didn't nobody likes seeing

31:29

that this whole two week effort

31:31

has been a calculated and orchestrated

31:33

political hit, almost by

31:36

himself. Justice Kavanaugh killed

31:38

any doubts that emotions inside judges

31:40

might be a problem, fueled with apparent

31:43

pent up anger about President Trump

31:45

and the twenty sixteen election

31:47

fear that has been unfairly stoked

31:50

about my judicial record, revenge

31:52

on behalf of the Clintons, and millions

31:54

of dollars in money from outside

31:57

left wing opposition groups. The

31:59

question I guess I have is how much can

32:01

be done about it? Even with the best coaching

32:05

I come in. I'm a baby judge. You know, I don't

32:07

really care about other people's feeling.

32:09

I don't look you in the eye. But I'm

32:11

very reasonable and I got as, I got AIS and all my classes

32:14

in law school and eight under too, my LSA t right,

32:16

and I can write a really cool brief.

32:18

However, I don't feel your pain. What

32:21

do you do to school me? Well,

32:24

you know there's a very long answer to that, and

32:26

that's a lifetime of work. Carry

32:29

maroney again, give me, give me

32:31

an example, just one example of a

32:34

of a tool. I want a tool. Yes,

32:36

So one tool is situation

32:39

modification. You can modify some

32:41

aspects of this situation to

32:44

enable you to be in greater control and

32:46

give you time and space to self

32:48

reflect into act. So sometimes it's as

32:50

simple as taking a break. Let

32:52

me stop here. Like all of these feelings and

32:55

the tools that you might give them to deal with these

32:57

feelings. This will make I can see

32:59

why this would help make the judge feel better about

33:02

about himself and about his job and able

33:04

to sleep at night. Yeah, which, actually

33:06

it's not going to actually affect the sentencing, is

33:08

it. Well, it could actually because

33:11

again, think about a judge who says, I realized

33:14

that I didn't want to send it in anger.

33:17

Anger makes you very punitive. That's

33:20

part of what it's for. That's the tendency

33:22

that it evokes in humans as to attach

33:24

responsibility and to take punitive

33:27

action in response to it.

33:34

In a funny way, American judges are

33:36

in the same situation as the judges in Uzbekistan.

33:40

They're being forced to adapt to a new

33:42

environment. Mister Trump tweeted

33:45

last week about the Seattle judge for

33:47

ruling against his executive order on immigration,

33:49

only the American environment is increasingly

33:51

driven by emotion, saying so the

33:54

opinion of this so called judge, which essentially

33:56

takes law enforcement away from our country,

33:58

is ridiculous and will be overturned. That

34:01

judge, James Robart, immediately

34:03

became a target on social media, with

34:05

one person even calling him a dead man walking.

34:08

This is Jeremy Fogel's worst nightmare.

34:11

So Judge Robart, who was the judge in Seattle

34:13

who did the travel band case,

34:17

got over a million emails.

34:20

He got death threats, and the death threats the Marshal

34:22

Service determined were credible

34:25

enough that they had to give him twenty four hour protection. And

34:28

what facilitated all of that was

34:31

was social media. Are there other judges

34:33

like Robot? Sure the

34:36

Ninth Circuit judges who reviewed Robart's

34:38

decision that got the same as

34:41

a judge Jeremy Fogel had

34:43

upset people with his rulings back

34:45

in two thousand and six. He had blocked the

34:47

execution of a man who had raped and strangled

34:49

the seventeen year old girl. After

34:52

Fogel's ruling, people went crazy. But

34:55

crazy in two thousand and six is different

34:57

from crazy now. The point

35:00

is that everything is amplified and sped up,

35:02

and there's just

35:04

no way you can respond to that. Judges are precluded

35:07

by the Code of Conduct from commenting

35:10

on pending cases. These forces of it

35:12

that are antagonistic to judicial

35:14

authority. I've gained

35:16

enormous strength, and there's not a corresponding

35:20

gain in in the forces. In

35:22

the strength of the forces that might defend authority.

35:25

That's right. I think there are

35:27

steps along the way, and that one

35:29

of the most important qualities

35:32

judges in America have right now is that people

35:34

believe in their independence. Emily

35:36

Basilon with one final thought, if

35:39

that starts to break down in a really

35:41

serious way, then even

35:43

if they technically remain independent,

35:47

wouldn't they start to feel tempted more

35:49

and more to do whatever is politically expedient.

35:52

But if they stop behaving in

35:54

any plausible way as if they're independent,

35:57

then aren't we on our way to Uzbekistan?

36:00

America Obviously isn't Uzbekistan.

36:04

The Uzbek judges lived in a black

36:06

box. The American judge lives

36:08

in a plex a glass cage. The

36:11

Uzbeks had no ability to criticize

36:13

their system of justice or even

36:15

to see how it really worked. We

36:18

watch our judges as they've never been watched

36:20

before. It's

36:22

not that all eyes are upon judges

36:24

when they do their jobs. It's

36:27

that all eyes are upon them when they do their jobs

36:29

in unpopular ways. When some

36:31

subset of the population feels that it's

36:33

being handed a cucumber when

36:35

it deserves a grape. People

36:38

from the Supreme Court of Ukraine came

36:41

to visit and

36:43

so in this meeting with them, and they say, well, you know what happens

36:46

when you rule against the government, and so nothing,

36:48

you know, if the government doesn't like the ruling, they appeal,

36:51

you know, but nothing happens to me, you know.

36:53

And they thought I was being disrespectful,

36:56

that I wasn't being truthful with them. He was

36:58

being truthful. But there's more

37:00

than one way to attack the independence of

37:02

judges. You don't need to

37:04

completely eliminate it. All

37:06

you need to do is to generate sufficient

37:08

mistry trust of their judgments, and

37:11

then it isn't long before every judge

37:13

is just a little bit frightened to do

37:15

her job. The Ninth Circuit

37:18

we're gonna have to look at that, because

37:20

every case, no matter where it is, they file

37:22

it. And what's called the Ninth Circuit. This

37:25

was an Obama judge. And I'll

37:27

tell you what, It's not gonna

37:29

happen like this anymore. She

37:34

tests her rock now against

37:36

the wall. She needs to give it to us and cumber

37:39

again. There's

37:43

one big practical difference between experimental

37:45

monkeys and human beings. The

37:48

monkeys at least pretend to respect their referees,

37:51

the people who work with them,

37:53

and the scientists really do want the best

37:55

for the monkeys. The researchers

37:57

piss them off by giving one a cucumber

37:59

and another a grape, but

38:02

they don't allow them to stay pissed off.

38:04

And how long do the feelings linger? Oh,

38:07

then I don't know. We usually by the

38:09

end of the experiment, because these monkeys live

38:11

in the group, they don't live in these test

38:13

chambers. By the end of the experiment,

38:15

we give them a lot of food and all

38:18

very happy, and then they are sent back to the

38:20

group. So we never know how long how

38:22

long they're mad, because we don't want

38:24

them to be frustrated by

38:26

the experiment. People aren't given

38:29

that chance. Our experiment

38:31

is called life, and it's frustrating

38:34

when we see unfairness. We

38:36

aren't sent to some decompression chamber to

38:38

calm down before rejoining our fellow human

38:40

beings. We look around

38:43

for something or someone to attack,

38:46

and at some point we see

38:48

the judge.

39:04

I'm Michael Lewis, thanks for listening

39:06

to Against the Rules. Against

39:08

the Rule is brought to you by Pushkin Industries.

39:13

The show is produced by Audrey Dilling and Katherine

39:16

Giredo, with research assistance from

39:18

Zoe, Oliver Gray and Beth Johnson. Our

39:21

editor is Julia Barton. Mia

39:24

Lobell is our executive producer. Our

39:27

theme was composed by Nick Brittel,

39:29

with additional scoring by Seth Samuel, mastering

39:33

by Jason Gambrel. Our

39:35

show was recorded by Tofa Ruth at

39:37

Northgate Studios in Berkeley. Special

39:40

thanks to our founders, Jacob Weisberg

39:43

and Malcolm Gladwell.