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Judicial decisions should be criticized from the viewpoint of the evolutionary status of the judge's desires and mental processes, rather than according to the obvious results, and in the light of psychic determinism instead of morality. Predispositions (prejudices) are inevitably universal and therefore, in themselves, immaterial. The only thing of importance is to know at what evolutionary level the dominant prejudices were formed. This is to be determined by analytic and evolutionary psychology, partial concepts of which are briefly formulated. The judge is on trial in every case before him.
“Every judicial opinion necessarily reveals a variety of choices. There is a choice of materials from that offered in evidence, as well as among possible precedents and arguments. A choice is made in that which is approved as well as that which is ignored, or expressly disapproved. There is a choice of material brought in by the judge and not a matter of record. There is choice in all that is emphasized, slighted or distorted. A choice is evinced in the very words by which these other choices are expressed. Every such choice is a fragment of autobiography.”
An unpublished actual judicial decision is made the subject of a careful analysis of all the choices that are revealed, by comparing its content with all legal alternatives. These choices thus made clear reveal also the judge's emotional conflict, and so his dominant defensive impulse in relation to the situation with which he is confronted. Choices reveal character, and back of that must be experiences adequate to its creation. Knowing the objective factors presented in the trial of the case, and the judge's reaction thereto as revealed in his decision, as by a process of subtraction we get at the judge's subjective biographical contribution to the final result.
By such methods of analysis and a careful checking and accounting for all possible alternatives, Schroeder concludes that in the decision before him every choice, ev