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."
Marianne Wesson, a novelist and nonfiction author who teaches Evidence as well as Law and Literature at the University of Colorado, offered two suggestions. The first is The Reader by Bernhard Schlink, which tells the story of a man who discovers that a woman he loved in youth was then actually a Nazi criminal. Now an adult law professor and judge, he "must struggle with familiar moral perplexities, but the story presents them clothed in the vivid colors of character and event, so one never feels as though the book is aimed at moral instruction," Wesson writes. "I've never found a better text for introducing students to the study of law and literature."
Wesson’s second pick is Bring Up the Bodies, by Hilary Mantel, the story of "the brilliant and manipulative lawyer Thomas Cromwell, chief adviser to Henry the Eighth." The book, she says, instructs on "what it means to be a lawyer, to have a client, to aspire to patriotism, to care for one's family, and to practice honesty alongside diplomacy." (Wesson’s is familiar with the tangles of the law: her new book, A Death at Crooked Creek, manages to find a tangled murder mystery in the origins of an exception to the hearsay rule of evidence.)
Scott Turow, practicing lawyer and best-selling author, took time out from promoting his new novel Identical to recommend a title many will find more obscure than Proust: The Just and the Unjust by James Gould Cozzens. (Interestingly enough, Ferguson also independently recommended this now largely forgotten book.) Published in 1942, The Just and the Unjust is a leisurely, even oddly idyllic account of a capital murder prosecution in a small Pennsylvania town, told through the eyes of an assistant District Attorney named Abner Coates. Justices should read the book, Turow said, "so each can recall what the daily life of a lawyer, and his or her clients, has always been like. Each case has its own imperatives in the life of the client, a fact that is hard to recall from the empyrean distance of the Court." Ferguson, for his part, wrote that the book is "out of date but presents something of the ideals in the profession with a hard realistic turn."
Abner Coates’s world is very different from the airy heights of the Court; he is one of what legal historian Lawrence Friedman once called "the worker bees of the law." In Childerstown, as another character tells Coates, "you won’t get rich and you won’t get famous; but you have a good life; one that’s some use, and makes some sense."
Cozzens is not Proust, but one moment in the book makes that electric leap into another’s inner world. Watching a defendant testify, Coates, the prosecutor, suddenly imagines he is the defendant; he looks at Abner Coates and sees a killer "implacable and dangerous . . . far beyond the reach of argument or the influence of pity." Abner Coates stands in the courtroom and confronts a man whose life he is trying to take; as far as I can tell, that’s an experience not one of the nine Justices has ever had.
Justices who can’t manage Proust might start with Cozzens, then. The reading would do them good.
* On this court, Stepehen Breyer is a distinctly odd duck—bilingual, urbane, a member of the French Académie des Sciences morales et politiques, married to an English wife and well aware of the importance of international law. Yet Breyer is precisely the kind of figure who sits on appellate benches elsewhere in the advanced world.