Just before the Supreme Court's October sitting, Justice Antonin Scalia made national headlines by proclaiming that he believes in Satan.
But before the November sitting, Justice Stephen G. Breyer sparked widespread apathy when he revealed he has read Marcel Proust’s seven-volume masterwork, À la recherche du temps perdu.
Breyer made this startling revelation in an interview with La Revue des Deux Mondes of Paris, published in translation by The New York Review of Books.*
I suspect that many Americans, told of this accomplishment, would be baffled: Why read a book in French when there are good English translations available? Why bother with a work of thousands of pages and damned little action? (Before it was published, a reader for one French publisher rejected it, saying, "My dear friend, perhaps I am dense, but I just don't understand why a man should take 30 pages to describe how he turns over in bed before he goes to sleep.")
For that matter, why read it at all, when the first volume has been made into a lush, sexy film starring Jeremy Irons?
In the interview, Breyer called Proust "the Shakespeare of the inner world," a writer who can give readers a sense of knowing the one thing it is completely impossible to know—what it is like to be another person:
Reading makes a judge capable of projecting himself into the lives of others, lives that have nothing in common with his own, even lives in completely different eras or cultures. And this empathy, this ability to envision the practical consequences on one’s contemporaries of a law or a legal decision, seems to me a crucial quality in a judge.
In American legal discourse, empathy is often portrayed as less respectable than Satan. Judges are presented as elements in the vast economic machine. Their job is to keep the conveyor belt flowing and to dispose of human widgets who come out defective. For these functionaries to be aware of those standing before them as fellow human beings would be dangerous.
I’m not saying there are no readers on the bench. In her memoir, My Beloved World, Sotomayor explains that, as a child, she came to understand the urban dysfunction of her native Bronx by comparing it to the island of children in William Golding’s Lord of the Flies. Justice Anthony Kennedy is known as an avid reader of contemporary fiction; perhaps partly for that reason, his decisions in cases like Romer v. Evans and Windsor v. United States show acute awareness of the sting homophobia inflicts. Chief Justice Roberts has referred to Charles Dickens’s Bleak House, the greatest legal novel ever written, in an opinion, and he once wrote a parody of Raymond Chandler-style tough guy detective prose in a dissent from a denial of cert. (Best line: "The neighborhood? Tough as a three dollar steak.")
But naming no names, I think some of the nine might profit from a few lessons in how others feel. As our legal system grows more powerful and complex, lawyers and judges alike really have become more like technicians than were the giants of an earlier era. Some of that is inevitable—in an age of 1,200-page statutes, the ability to sort Subsection 123(a)(ii)(f) from Subsection 123(a)(ii)(g) demands a kind of niggling precision not needed back in the days when lawyers argued from Blackstone, Shakespeare, and Magna Carta. But some of it is the product of the vast scale of both society and its legal apparatus. And, let’s be frank, some of it is the product of the privileged lives our justices live, surrounded only by deference and approval, safe for life from any fear of sickness and want.
I asked a few observers of law and letters which books they would prescribe for the current justices. Robert Ferguson, a legal scholar and literary critic who teaches at Columbia Law School, suggested that every justice ought to read a volume of writing by prisoners. (His new book, Inferno: An Anatomy of American Punishment, examines why Americans are so much more eager to punish than citizens of other advanced nations.) "Bell Gale Chevigny's Doing Time: 25 years of Prison Writing is one I use, but there are others," he said. "Most judges have no clue of the hell holes they are sending people into."