Judging Mercy

This Article examines some jurisprudential implications of the age-old ethical tension between justice and mercy and attempts a theory of merciful judging. Justice, which requires that a judge give each party what he is due under the law, seems irreconcilable with mercy, because in showing mercy the judge gives a person better than he is due. Some scholars have concluded from these premises that mercy is inherently incompatible with judging, but this conclusion is based on a too-narrow view of judging. Although mercy and justice are incompatible within purely legal decisionmaking, they may interact in distinct phases of the judicial process. This Article separates the legal and extra-legal elements of the judicial role to carve out a space for judicial mercy outside legal judgment. Three extra-legal judicial functions suggest themselves as proper avenues for judicial mercy: fact-finding, procedural decisionmaking, and opinion-writing. Three recent exercises of these functions have drawn strains of public criticism that can best be understood as reactions to perceived failures of judicial mercy: the wide disparity in asylum grant rates among U.S. immigration judges, a Texas judge’s denial of a death-row inmate’s request to file an appeal twenty minutes late, and a federal appellate panel’s summary order affirming summary judgment against a novel racial discrimination claim brought by a group of firefighters.