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On occasion we all wake up grumpy (or grumpier than usual).  We?re a touch more critical, a pinch more pessimistic, a bit less filled with neighborly love.  Sometimes coffee and carbohydrates restore our spirits; other times an internal scowl lingers.  As a result, minor decisions?e.g., whether to snap at a colleague, criticize a spouse?s outfit, skip a conference call?may turn out differently than if we were in our ?normal? mood.   The same is true in the opposite direction if we wake up feeling like Ned Flanders. 

Judges, human as the rest of us, are subject to the vicissitudes of mood.  How often do judges? unusual mental states?from euphoria associated with the birth of a grandchild, to occasional cheerfulness/grumpiness, to profound mental distress occasioned by spousal loss?affect their legal decisions?  Put another way: assume both Human Judge A and Robot Judge A normally make decisions according to the same set of jurisprudential heuristics.  Human Judge A?s mood varies with roughly the same frequency and magnitude as a normal white-collar professional of similar age and education; Robot Judge A?s mood never varies. 

How often will their decisions differ?

My own intuition, as yet uncorrupted by any effort at empirical study, is that (1) a nontrivial amount of ?mood-based decisional divergence? occurs and (2) the divergence decreases the higher up the appellate food chain one rises.   Among other things, the institutional structure and dynamics of the Supreme Court, as well as the intense scrutiny that accompanies all their judicial acts, seem to be powerful mood-scrubbers.  Trial court judicial acts?including innumerable discovery and evidentiary decisions?seem much more susceptible to mood divergence.    

Agree? Disagree? I?m also interested to hear examples where credible biographers/observers have concluded that particular Supreme Court Justice?s opinion or opinions were significantly influenced by his/her unusual mental state at the time a case was decided.   

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