Faces in the courtroom.

• Author: Dalzell, Stewart

A few months after I began my work on the United States District Court for the Eastern District of Pennsylvania, I attended a week of seminars in Washington, D.C., sponsored by the Federal judicial Center. Besides covering many aspects of federal civil and criminal law, we had dinner each night with judicial luminaries, including one night at the Supreme Court dining with justices White and Scalia. The host of our last such dinner was one of the nation's brightest court of appeals judges, who ate with us in a private dining room at a pleasant restaurant. He regaled us with his experience on his circuit. Of all his good stories, however, one has stayed with me that I would like briefly to share here.

The judge described a case involving a state university's application of NCAA eligibility rules to exclude a gifted young athlete from his chosen game. When the young man was foreclosed from playing his sport in intercollegiate competition, he filed an action under 42 U.S.C. [sections] 1983. As the judge was canvassing for us the interesting legal points at issue, he mentioned something in passing that, for me, eclipsed his erudite, witty account. He mentioned that during the oral argument he had noticed a young male face in the packed courtroom. The judge had wondered to himself, "Is that young fellow there our plaintiff?"

I suddenly felt saddened for this fine judge. I thought, you could not recognize--or even picture in your mind--this disappointed star who brought these stimulating issues before you? He had no face for you? There, I thought, is a pity.

This Essay is about avoiding that pity. I offer here one judge's view about judging, and, in particular, about a consequence of realizing that in every case there is at least one face, and usually more, who not only looks at what we judges do, but is profoundly and personally affected by our actions.

Although most speakers of American English use the word "passion" to refer to "amorous feelings or desires," that meaning is, in fact, the eighth of ten major definitions of the word in the 1989 edition of the Oxford English Dictionary.(1) The very first definition in the Oxford English Dictionary, "[t]he suffering of pain,"(2) applies to litigants, as in "the passion of Sacco and Vanzetti." This application of "passion" does no more than recognize that the term "federal case" is not a cliche for our litigants. For all of them, their cases represent a major crisis in their lives that they will never forget.(3)

As we consider some faces here, I would like to apply another meaning of "passion." The sixth Oxford English Dictionary definition is "[a]ny kind of feeling by which the mind is powerfully affected or moved."(4) I here will argue that this meaning of "passion" has relevance to the business of the judiciary.

An example of how it is relevant may be found in the celebrated--and in its early years, condemned--action of my brother judge, Raymond J. Broderick, in the famous case of Halderman v. Pennhurst State School & Hospital.(5) Halderman was judge Broderick's landmark case that dealt with the constitutional and statutory rights of mentally retarded people. The first of seventy class-action civil-rights lawsuits filed around the country, Halderman has for over two decades served as a model for deinstitutionalization litigation in America.

Judge Broderick issued dozens of published opinions, the court of appeals published its share, and the Supreme Court twice weighed in.(6) Indeed, from the Supreme Court's second decision in 1984 until today, judge Broderick has issued no less than twenty-four published opinions, and has entered hundreds of orders implementing his original injunction.

On February 9 of this year, judge Broderick issued a forty-one page memorandum that, at last, looks to the end of the litigation that began on May 30, 1974.(7) Indeed, judge Broderick's February 9 decision contemplates a terminal date of June 30, 1998.

In his canvass in this opinion of the "empirical evidence that class members are better off in almost every way since leaving Pennhurst and receiving individualized habilitation in the community,"(8) judge Broderick offers a vignette that, I submit, tellingly reveals the passion that accumulated in him after thirty-two days of testimony in the 1977 trial. At page twenty-seven of his February 9 Memorandum, Judge Broderick writes about the lead plaintiff as she was in 1977 and is now:

"Terri Lee Halderman, the original plaintiff in this

action, was admitted to Pennhurst in 1966 when she

was twelve years of age. During her eleven years at

Pennhurst, as a result of attacks and accidents, she

has lost several teeth and suffered a fractured jaw,

fractured fingers, a fractured toe and numerous

lacerations, cuts, scratches and bites." Today,

the Court can happily report that Ms. Halderman

lives in a one-level, ranch-style home with two

roommates in Delaware County. Her home has a deck

and a backyard where she enjoys the outdoors. She

is in good health. She is provided with one-to-one

staffing at all times, which enables her to

participate in activities in the community

during the day.(9)

It is quite evident that twenty years after her testimony, judge Broderick has never forgotten the face of Terri Lee Halderman. Of course, he made legal history along the way, but query whether any judge, including judge Broderick, would have invested the energy, patience, intelligence, and creativity that judge Broderick has brought to bear for almost a quarter of a century without the passion Terri Lee Halderman animated in this insightful judge.

Compare judge Broderick's view of Terri Lee Halderman with a similar litigant before justice Oliver Wendell Holmes and his brethren in 1927. In case the reader has forgotten who Carrie Buck was, here is Justice Holmes's complete description of her:

Carrie Buck is a feebleminded white woman who was

committed to the State Colony [for Epileptics and

Feeble Minded for the State of Virginia] in due form.

She is the daughter of a feebleminded mother in the

same institution, and the mother of an illegitimate

feebleminded child. She was eighteen years old at the

time of the trial of her case ....(10)

When Ms. Buck's guardian and next friend, R.G. Shelton, took due process and equal protection exception to State Colony superintendent J.H. Bell's intention to sterilize Carrie Buck, Justice Holmes and seven of his brethren (Justice Butler dissented) ruled against her. Justice Holmes likened the involuntary cutting of Carrie Buck's fallopian tubes to the compulsory vaccination of adults during a smallpox epidemic.(11) He also observed that "[i]t would be strange" if the Commonwealth of Virginia "could not call upon those who already sap the strength of the State" for a "lesser sacrifice" than military service sometimes required of those who did not sap that sovereign strength. And then the learned justice almost invited Ms. Buck to thank him for her forced sterilization when he wrote: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."(12) Thus, as the night follows the day, Holmes held for the Court, "Three generations of imbeciles are enough."(13) That's all. There, you have it.

Who would dare quibble with Chief Judge Posner's appraisal that places Holmes equal to, and possibly even greater than, Chief Justice John Marshall in the judicial pantheon?(14) For Learned Hand, whom Chief Judge Posner ranks just behind Holmes and Marshall, "Holmes was," Professor Gunther reports to us, "an unblemished idol on the bench."(15) Fifty years after Buck v. Bell, I am sure that judge Broderick, when he decided in favor of Terri Lee Halderman, would not have allowed his name to be mentioned in the same breath with the great justice Holmes.

I am equally sure, however, that, if given the choice, Terri Lee Halderman would not trade places with Carrie Buck--even to be before the demigod Holmes--for all the attorney's...