Santa Ana
Scott C. Clarkson
Judge
Bankruptcy
Scott C. Clarkson is a U.S. bankruptcy judge in the Central District of California.
"The spirit of liberty is the spirit which is not too sure that it is right."
-- Judge Learned Hand, "The Spirit of Liberty" (1944)
Civility is often described in the language of manners,
including politeness, courtesy or restraint. Not to be naïve, there
exists a line of scholarly critique arguing that appeals to "civility" in
public discourse are not neutral or benign, but can serve to discipline,
silence, or erase minority or dissenting voices. For instance, see Lynn Mie
Itagaki's "The Long Con of Civility" (2021) where it is argued that civility
has a "disciplinary, repressive effect in maintaining or deepening racial,
gendered, heteronormative, and ableist hierarchies." (i.e., "Oh
shut up, you're making a scene and being uncivil.")
In the courtroom, it is codified in canons and professionalism standards, reminding lawyers and judges alike that respect for the tribunal and for one another sustains the dignity of justice. Yet civility, properly understood, is not simply etiquette; it is an ethical discipline grounded in the recognition of others as bearers of reason and experience. Its first, and most indispensable, principle is listening.
To listen is to suspend the primacy of self, including our opinions, our preferences, our certainties, and to make room for the reality of another mind. For the courtroom, this is not an act of politeness but of duty. Judges cannot exercise fairness without first hearing the arguments. The act of listening is thus the quiet center of the rule of law, the condition without which impartial judgment is impossible.
The judicial act of listening
Judging is, in its essence, an exercise in disciplined listening. Every hearing that is undertaken, every argument, every written submission, represents the plea to be heard fully and fairly before the power of the judiciary is exercised. This is the meaning of audi alteram partem ("hear the other side"), the ancient cornerstone of procedural fairness.
Listening, in this sense, is not passive reception. It is an act of intellectual humility, of openness to persuasion. It requires a mind that resists haste, that can hold competing claims in tension until reason and conscience find their balance. The most profound moments of judicial life are not those in which a judge speaks, but those in which a judge listens, truly listens, to what is said and, often, to what is left unsaid.
Judge Learned Hand's admonition that "the spirit of liberty is the spirit which is not too sure that it is right" expresses precisely this judicial virtue. The act of listening tempers certainty, cools passion and allows judgment to mature through deliberation, rather than reaction. It is a moral habit, cultivated daily in chambers, hearings and conferences, and it demands from each of us the rarest of disciplines: attention without preemption.
Listening in the adversary system
Our adversary system presupposes that truth has a better chance to emerge through the contest of opposing arguments. It therefore depends not merely on the skill of advocacy but on the receptivity of the tribunal. Indeed, in our bankruptcy world where over 20% of parties are pro se, the skill of advocacy must sometimes take a back seat to receptivity. After all, while serving his sentence at the Florida State Prison in Raiford in 1961, Clarence Gideon began studying law in the prison library. He became convinced that his Sixth Amendment right to counsel had been violated. He wrote a five-page handwritten petition for writ of habeas corpus to the Florida Supreme Court, arguing that his conviction was unconstitutional because he had not been given a lawyer. The Florida Supreme Court denied the petition without a hearing in 1962 and then Gideon petitioned the U.S. Supreme Court directly, again by hand, asking the Court to take his case. The Court received his handwritten petition and granted certiorari to decide whether the right to counsel applied to state courts through the Fourteenth Amendment's Due Process Clause. Abe Fortas, Esq. represented Gideon at the Supreme Court, and Justice Hugo Black wrote for the unanimous Supreme Court. Gideon v. Wainwright, 372 U.S. 335 (1963).
When counsel present their pleadings, or when they rise to argue, they do so in reliance on the promise that their written or spoken words will be heard and considered. The judge's patience, attentiveness and restraint embody the rule of law itself. The court that listens poorly diminishes not only its parties but its own legitimacy. Listening is also an act of equality. Within the courtroom, power and wealth yield to the discipline of reasoned hearing. A soft-spoken debtor, a frightened litigant and a pro se -- all are entitled to the same attention as the most sophisticated counsel. The civility of listening is therefore an instrument of justice: it enforces the equality of voice upon which fairness depends.
The ethics of collegial listening
Listening is not confined to the courtroom. Within the collegial life of the judiciary, particularly in appellate panels, it is the essential virtue of deliberation. Every appellate decision is, at its core, a dialogue among judges seeking not uniformity but understanding.
True collegiality is not achieved by courtesy alone. It requires the willingness to hear one's colleagues, especially when one disagrees. The temptation of certainty is strong; so too is the comfort of alignment. Yet civility in deliberation demands the humility to recognize that another's reasoning may reveal an error in one's own.
The late Justice Robert Jackson once observed that "we are not final because we are infallible; we are infallible only because we are final." That wry recognition should remind every judge that fallibility is the companion of authority. Listening within collegial bodies is the safeguard against the isolation of mind that can accompany power. It transforms disagreement from conflict into collaboration and dissent from rupture into renewal.
The historical roots of civility and hearing
The association of civility with listening has deep roots in both political and religious thought. Thomas Hobbes, often misunderstood as an advocate of authority over liberty, nonetheless grounded the social contract in the mutual recognition of voice, that is, the agreement to "hearken unto reason." Roger Williams, in 17th-century New England, defended liberty of conscience through the practice of hearing dissent. His "permission of the most paganish, Jewish, Turkish, or antichristian consciences" was, at bottom, an act of listening extended into the civic sphere.
By the 18th century, Anthony Ashley Cooper, the Third Earl of Shaftesbury, and later David Hume and Adam Smith, understood civility as the cultivation of the ability to enter imaginatively into another's perspective. To be civil was to listen with charity and curiosity. These moral philosophers shaped the temperament of the common law itself, which evolves not by fiat, but by listening to precedent, to argument and to experience.
The judiciary inherits this moral lineage. Every opinion is a conversation across time, with statutes, with prior courts, with dissenters, with the future. The law develops through sustained listening: to the claims of reason and to the evolving conscience of society.
The erosion of listening in modern discourse
We live in an age when listening is endangered. The architecture of modern communication rewards declaration over deliberation. In politics, in media, and sometimes even in the courtroom, speech has become performative rather than dialogic. The civility that once restrained rhetoric in the service of persuasion is increasingly dismissed as weakness or artifice.
Federal judges, though mostly insulated from political contests, but not always excepted from facing threats of impeachment or operational defunding by the other separate branches of the federal government, are not immune from this cultural shift. The habits of interruption, impatience and confirmation bias can infiltrate chambers as easily as they do public life. The antidote is conscious discipline. The act of listening reasserts the independence of the mind against the contagion of haste. Civility, in this sense, is not silence in the face of wrong; it is the method by which disagreement remains productive rather than destructive. Listening does not require assent; it requires respect. And in a democracy, respect for voice is respect for personhood. The judiciary models this not by agreement with all who come before it, but by hearing them all with equal seriousness.
Learned Hand warned against the arrogance of certainty because he understood that judgment requires perpetual curiosity. Listening is that curiosity in practice. It is what keeps the judicial vocation from becoming mechanical, and what keeps the law responsive to lived experience. The first principle of civility, the duty to listen, binds judges, lawyers and citizens alike. It preserves the legitimacy of our institutions and the humanity of those who serve within them. To listen is to affirm that the law belongs not to those who speak loudest, but to those who hear most faithfully.