The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [77]
Another example came in a search and seizure case called United States v. Drayton, which I discussed in chapter two.24 A bus was stopped in the middle of the night, far from its destination. Police boarded and stood at the rear and the front. An armed officer walked up and down the aisle, approached two seated passengers, and asked them to open their luggage. The officer stood over them, blocking their exit, and did not say they had a right to refuse. The passengers “agreed” to let the police look in their bags, and a significant amount of cocaine was discovered. The Supreme Court majority held that this was a consensual search, since the passengers had a choice—they could have gotten off the bus.
There was no reason for Justice Souter to sympathize with a couple of drug dealers with kilos of cocaine in their carry-on bags. But his dissent made the important point that the consent forming the basis of the search was manufactured rather than genuine. In analytic but powerful prose, he described the power of police in situations that we can reasonably assume he had never faced: “When the attention of several officers is brought to bear on one civilian the balance of immediate power is unmistakable. We all understand . . . that a display of power rising to . . . [a] threatening level may overbear a normal person’s ability to act freely, even in the absence of explicit commands or the formalities of detention.” For Souter, taking a different point of view was not an emotional exercise but an intellectual one.
Understanding the importance of empathy for judges reveals the comparison of judges with umpires to be so unhelpful that it appears calculated to mislead. Judges rarely decide any case, much less a difficult one, by performing the judicial equivalent of calling balls and strikes. Good judging requires that the parties be given the opportunity to tell their stories, and that the judges and juries be intellectually empathetic enough to imagine themselves in the situation described, in the role of either or both of the parties. Only then can they reach the correct legal outcome.
4.
Why should all this discussion about judging matter to those of us who will never be judges? Of course it matters if we’re in court. We want judges to hear our stories and try to empathize with the situation in which we faced our choices.
But more important, the habits of good judging are important to the rest of us as we judge the choices of those around us. In our roles as spouse, parent, friend, or colleague, we would do well to listen to others’ stories, pay attention to particularities, and practice intellectual empathy. We need to understand the influences of biology, culture, authority, and markets on the decisions of those around us.
If you’re like me, you’re excellent at seeing this influence of situation when evaluating your own actions. We humans are terrific at absolving ourselves from blame because of what is going on around us. Every excuse we offer makes perfect sense to us.25 We even put ourselves in situations where we know we will be tempted, in order to absolve ourselves. It’s why Mardi Gras in New Orleans, spring break in South Beach, or any random Tuesday in Las Vegas becomes a morality-free zone. We recognize our susceptibility to the situation and take advantage of it. This is why “What happens in Vegas stays in Vegas” is a powerful slogan and why “Lead us not into temptation” is a brilliant prayer.
But we are much less sensitive to the influence of situation when we evaluate the choices of others. As scholar Jon Hanson might say, we tend to be “situationalists” when we judge ourselves, recognizing the constraints we act under, but “dispositionalists” with others, thinking that decisions flow from pure free will.26 We probably could be more thoughtful before we release ourselves from blame