Emotion in the language of judging

I am going to talk about emotion in the language of judging. I begin with two quotations. One is a statement made by Justice Steven G. Breyer during his confirmation hearings:

I read something that moved me a lot not very long ago. I was reading something by Chesterton, and he was talking about one of the Brontes ... . He said ... you go and you look out at the City, he said - I think he was looking at London - and he said, you know, you see all those houses now, even at the end of the 19th century, and they look as if they are the same. And you think all those people are out there, going to work, and they are all the same. But, he says, what Bronte tells you is they are not the same. Each one of those persons and each one of those houses and each one of those families is different, and they each have a story to tell. Each of those stories involves something about human passion. Each of those stories involves a man, a woman, children, families, work, lives. And you get that sense out of the book. So sometimes, I have found literature very helpful as a way out of the tower.'

The other quotation is from an article in The New Republic on the occasion of the retirement of Justice Blackmun. It is called "Sentimental Journey," and it was written by Jeffrey Rosen.2 Rosen stated:

But feeling deeply is no substitute for arguing rigorously; and the qualities that made Blackman an admirable man ultimately condemned him to be an ineffective Justice. By reducing so many cases to their human dimensions and refusing to justify his impulses with principled legal arguments, Blackmun showed the dangers of the jurisprudence of sentiment!

The larger thesis for which I should like to argue if I had time here is that the language of judging should be in some respects, which we would have to specify very carefully, like the language of the lover of literature.4 By that, I mean not necessarily fine words and high style, but a language that is expressive of the kind of imagination that's capable of perceiving the individual humanity of...