In Search of Lost Time

"He has an enormous talent for building characters and bringing a world to life. In his descriptions of his own experiences you see the role of art in life. Art is not separate from life, it is an element of life. We all have the need and the capacity to impose form upon the flux around us. Now, we can impose a better form or we can impose a worse form. We aren’t all geniuses like Proust. Yet we can try to clarify our thoughts and remember the importance of form when we write. Proust shows us that activity helps give meaning to life and it’s helpful to keep in mind as a judge. I have spent a lot of time with French. I try. It’s work sometimes. But worth it, for the same reason I recommend reading literature. We have only one life, each of us. Through literature and language we can begin to understand the lives of other people and get insight into how others see the world. By reading some French books as originally written, I think I gain a better view of a world that is seen by many people who speak French, which I would be cut off from otherwise because translation is different. So language, like literature, opens windows. The job of being a judge entails spending every day alone in a room with books and a word processor. Yet the words that you write affect other people. Only the most difficult cases get to the Supreme Court, those cases where perfectly good judges come to different conclusions on the meaning of the same words. In those difficult cases, it is very important to imaginatively understand how other people live and how your decisions might affect them, so you can take that into account when you write. Judges have the job of trying to work out what the words written down in a statute actually mean. We have six traditional ways of approaching this job. First, we read the words. Second, we look to the tradition. For instance, the phrase “habeas corpus” has a big legal tradition behind it. Third, we look to the history of the case. Fourth, we look to precedent – what has been said about this in previous cases? Fifth, we look to purposes – somebody wrote this statute, what did they have in mind and what were they trying to accomplish with these words? And sixth, we look to consequences. That is, if we interpret the statute this way are we furthering the statute’s purpose or are we hindering it. Everybody uses those six tools: Text, tradition, history, precedent, purpose and consequence. Support Five Books Five Books interviews are expensive to produce. If you're enjoying this interview, please support us by donating a small amount . Some judges tend to emphasise purposes and consequences. That’s what I do. I often cannot get the answer from the first four things, so I look to purpose – what did the authors of the bill mean? What were they trying to accomplish? Other judges feel that that’s too subjective. They try to find the answer in history, text, language and tradition – the first four. That explains differences among the judges. It’s a question of emphasis. I fear that just looking at text, history, tradition and precedent won’t answer the question. If that’s all you look to, too often you will produce a law that is too rigid to adapt to human circumstances, which are ever-changing. That’s why I look to purposes, but I certainly agree that the first four are relevant. They believe they can find answers in those four factors more often. When you’re interpreting a provision of our constitution, which was written in 1787, ratified in 1789 and the phrases are general, the strict constructionist tends to think he can find the answer by looking back to see what the founders would have thought. All of us, including me, agree that you have to look back to find out the primary value that underlies the provision of the constitution. For example, what was the constitution trying to protect when it protected freedom of speech? Speech is a form of expression. They were trying to protect expression. You have to find the value. Get the weekly Five Books newsletter Values don’t change, but circumstances do. The Internet is something that George Washington didn’t envision. George Washington can’t tell us how the First Amendment applies to the Internet. But history can tell us what the framers were trying to achieve when they wrote the First Amendment. Some people think they can answer specific questions today through history. I think you can’t get that much out of it and you must apply, as best you can, unchanging values like free expression to the ever-changing circumstances of modern life. I’ve spent the last four summers writing Making Our Democracy Work . I put a lot of my heart and soul into trying to translate the experience I’m having into a form that is understandable for all readers. So this summer I have a lot of reading I want to catch up on, including some American biographies. Good ones recently came out on George Washington, for example. And I do like French literature, I’ll probably go back and read some Balzac . There are a whole lot of things. I have a large pile. I can’t remember what is in it, but I am looking forward to it."

"This is Marcel Proust’s famous masterpiece which is an excruciatingly detailed chronicle of his life in which every single element and thought is captured and retold. Proust’s book is one of an entire (and well-known) genre: James Joyce’s Ulysses being one and Robert Musil’s A Man without Qualities a further one. These authors aim to capture the entirety of our being and it creates a fascinating and excruciating rollercoaster experience for the reader. Our minds capture a myriad of impressions every minute, but we deal with that deluge of stimuli by forgetting most of them. If one undoes that, like Marcel Proust, one will experience a very acute sense of overload. With the exception of The Woman Who Can’t forget and Daniel Schacter’s scientific analysis, my choices are works of literature. They envision a dystopian world in which we remember too much. Schacter points at cognitive reasons as to why perfect recall is problematic. The woman who cannot forget is suffering in real life what the other authors wrote about. But she may not be alone for much longer. The digital tools around us make it very hard for us to forget and very easy for us to remember. So we might end up being the Funes of the future in an unforgetting, and thus unforgiving, world that is permanently tethering us to the past, inhibiting our ability to act in time."