CBA Record Nov-Dec 2019

The Art of “Deciding”When Law, Compassion, and Justice Are at War By Anthony F. Fata

A calm courtroom in the morning: “The nine o’ clock call is ready, your honor.” Professional attor- neys: “If it pleases the court, your honor.” Humbled attorneys: “It won’t happen again, your honor.” Grateful attorneys: “Thank you, your honor.” Peaceful after- noon deliberations: “All calls to voice mail, your honor.” Concise records: “All the briefs under the page limit, your honor.” Help with the facts: “I’ll check those exhibits, your honor.” Help with the law: “I found so many cases on point, your honor.” Help with the prose: “Do you prefer ‘that’ or ‘which,’ your honor?” Righting wrongs: “Justice was served, your honor.” Feel-good moments: “Lucky to have judges like you, your honor.” Vindi- cation: “You were affirmed, your honor.” Critical acclaim: “They’re calling you the next Learned Hand, your honor.” Maybe a judge dreams in the space between crowded court calls, endless argu- ments, the rules committee on this , and the initiative on that . Or maybe that’s when a

judge has time to parse scattershot argu- ments in seemingly interminable briefs and meandering transcripts. Maybe the space between leaves just barely enough time to deliberate. And to decide. “To decide.” That must be a challenge. Frivolous Claim v. Insurmountable Defense and Unbridled Truth v. Nothing to Say are rare cases. Most are at least a little messy … These Facts v. Those Facts … Legislative Purpose v. Statutory Text … Really Good Facts v. Clear Statute. What about the really messy cases? The ones with parties more powerful than the facts and the law? What happens in cases where big concepts line up on opposite sides of the “ v. ” such as Justice v. Consti- tution … Law v. Compassion … Precedent v. Equality ? How do judges decide these cases in the fleeting moments between arguments, hearings, and meetings? Do they think to themselves, “You can’t do that, your honor”? … “How is that fair, your honor?” … “You got reversed, your honor.” …

“Don’t read the paper today, your honor.” … It must be tough. Three examples of tough cases and the judges who decided them appear below: • Judge Michael Panter (retired) grap- pled with a case in which a tech blog solicited and published trade secrets for no other reason than to promote the blog, and then sought shelter under the Illinois reporter’s privilege and the First Amendment. • Judge Mary Brigid McGrath (retired) recalls a particularly daunting paren- tal rights termination case involving a fully-bonded family whose mother was “unfit” solely because she was intellectually disabled. • Justice Dom Rizzi (retired) describes being the first appellate court justice in the United States (state or federal) to strike down race-based peremptory challenges in the face of a longstanding body of law demanding he do just the opposite.

22 November/December 2019