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The Hollow Concept of Judicial Empathy

-- By MikeAbend - 16 May 2010

Obama's Litmus Test?

About a month ago, our Constitutional Law class arrived at Roe v. Wade. After running through the doctrinal distinctions among the three trimesters and the textual underpinnings of the decision, our professor introduced to the class the concept of "judicial empathy". Blackmun's opinion, he argued, was special-- and admirable-- in that he grounded his views partially in the plight of women with unwanted children (who would be stigmatized and otherwise stressed) and would-be aborted children who do not receive adequate love and care. Such empathy, I thought, was hardly first displayed in 1973. Brown v. Board of Education (1954) was at least somewhat decided with an empathetic, "bleeding" heart. Same with Heart of Atlanta Motel and Katzenbach v. McClung? . So was Muller v. Oregon, for that matter, where Brewer wrote "that woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious." Ad infinitum. Empathy was nothing new.

I noticed that each of the opinions embodying "judicial empathy" had been written by liberal justices and focused on the empowerment of democratically underrepresented minorities, specifically women and blacks. I asked my professor whether being empathetic is an inherently liberal quality, or at least more influential among liberal justices. He turned the floor over to a classmate, who urged me to look at the dissent in Kelo. I did --and there's a tad of empathy there (by Thomas, who felt for the "poor communities" who would likely bear the brunt of the majority's decision-- but not of the same quality in the cases that came to mind.

In light of the fact that Obama's proclaimed penchant for judicial empathy likely led him to choose our most recently appointed Supreme Court justice and will almost certainly inform his next choice, it's worth considering: 1) What judicial empathy actually is, 2) Whether it is in fact unique to liberals, and 3) If 2) is true, what that means.

Obama first acknowledged his appreciation for judicial empathy at John Roberts' confirmation hearing in 2005. It was the "5 percent" of cases, the really tough ones, that he felt required empathy on behalf of the disenfranchised and immobilized. Roberts, in Obama's estimation, did not have it. After participating in the 2006 filibuster of Samuel Alito's confirmation, Obama shared a similar gripe, saying that Alito had a Pavlovian impulse to favor employers over employees, obscuring his ability to view cases from multiple viewpoints. And Obama famously lauded Sonia Sotomayor's experience as providing her with the ability to empathize, though she rejected Obama's view at her confirmation hearings. (Sotomayor ironically referred to herself as an "umpire" in judging.)

So is "empathetic" simply a code word for liberal?

What Is Judicial Empathy?

Webster's defines empathy as "the experiencing as one's own the feelings of another," meaning a judge would understand the impact of a decision from the relevant party's viewpoint. Such a device necessitates a judge thinking about the law from more than one perspective. I endorse Obama's view--for all intents and purposes the most relevant opinion-- as noted in The Audacity of Hope: "Empathy... calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision." Obama has also emphasized the need to focus on the troubles of the powerless, those with little to no sway in our society's legal system. In Obama's view, empathy means pragmatic concern for all affected parties and the ability to acknowledge their interests when making a decision.

Judicial doctrine is continually evolving, and it must take into account the continual progression of societal mores. Conceptions of governance change as society, technology, medicine, and demographics advance, and with it the "proper" role of the judiciary. I do not think the question is whether judicial empathy is antithetical to neutral decision-making, but whether it weighs more heavily on a potential decision for liberal judges than for conservatives.

A Potential Real World Issue

Lets assume that Congress approves Elena Kagan and the issue of "Don't Ask, Don't Tell" comes before the Supreme Court (ignoring that it was already denied cert last year). Ms. Kagan has already made known her stance on the subject, calling the military's ban on homosexuals "a profound wrong" and "a moral injustice of the first order."

I would assume that given the opportunity, Ms. Kagan would write an opinion declaring the ban unconstitutional. And I don't think that her stance would be solidly based on any constitutional law doctrine, but more of the natural justice sort where we get opinions such as Roe and Lawrence.

I've noticed that as a lawyer, my decisions are not bottom up. I do not apply rational principles as a formula, insert data, and come out with the "right" answer. Instead, usually, I go top-down, making my decision based on the circumstances and my emotions and then look for justifications. And while we like to assume some deific ability of Supreme Court justices to separate their human foibles from judicial responsibilities, it's unrealistic to assume they will always be 100% neutral.

As John Lehrer put it: “People are master confabulators: we so effectively justify our moral intuitions that we're convinced they're not intuitions, but are instead derived from perfectly rational principles. (Only the other side is dependent on the frailties of feeling.) This is why, as Oliver Wendell Holmes Jr. correctly noted, ‘Lawyers spend a great deal of their time shoveling smoke.’”

So back to Kagan and her opposition to DODT. I assume her stance will be based mostly in moral intuition with some constitutional support. In this specific case, Kagan's empathetic view on the plight of homosexuals is likely controlling, but other justices may give less weight to the homosexual struggle.

David Brooks summarizes: "Many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities."

In reality, these ideas of natural justice are more a controversy of constitutional construction, perhaps best personified by the Black/Frankfurter debates on the meaning of due process of law. Liberal judges may be more willing to look at issues in the real world, while conservative judges look at the law as more of a philosophical judgment, what I like to call "law in a vacuum", resulting in a doctrinal divide. But I do not think that judicial empathy alone is responsible; as a wise man once said: "Guns don't kill people-- people kill people."

So What?

I think while two judges may view an issue with equal empathy, it ultimately is a moral question. And I don't think the binary divide of Liberal-Conservative can accurately describe the factors at play in making a moral decision. In evaluating a potential Supreme Court justice, we should not ask whether they use empathy at all, but how they use it. Can they separate raw emotion from legal logic, and should they?

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