According to President Obama, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily reality of people’s lives.” While Obama valued legal prowess as a necessity for becoming a Supreme Court justice, “empathy” was a tiebreaker that ultimately led to the nomination of Sonia Sotamayor.
There have been two main lines of thought on empathy since Obama has emphasized it. Dahlia Lithwick of Slate and other liberal commentators maintain that understanding the feelings of other people is frequently beneficial for reaching good legal decisions: “When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy.”
Michael Gerson and others have rejected Lithwick’s view, claiming that the law is impartial and should be interpreted as such, treating all individuals equally rather than making decisions based on emotions and supposed power disparities. Both of these commentaries on empathy miss the mark by not acknowledging the multidimensionality of empathy. Below I offer a slightly more nuanced treatment of the role empathy should play in judicial decision-making:
Obama elaborates on empathy by claiming, “It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.” In some legal realms, this is uncontroversial. In fact, empathy is often crucial to applying legal doctrines. For instance, a law can be unconstitutionally vague. If a person of common intelligence would not be able to comprehend a statute, then that law may be deemed unconstitutional. A justice who has a sense of empathy—an ability to understand how others react to and interpret a statute—has an advantage in determining whether a particular law has a chilling effect on the speech or behavior of individuals. When analyzing whether a law is vague, a judge must take the perspective of the average citizen in interpreting the statute at hand; the judge needs to understand people and how they will react to statutes and regulation(s) in order to apply the legal doctrine optimally. “Reasonable person” tests and other legal doctrines that call for empathy are not uncommon.
However, empathy is not necessary every time a judge deliberates on a decision. According to the New York Times, Obama claimed that “his emphasis on practicality ‘might cut the other way,’ since he wanted to nominate someone ‘who has a sense of how regulations might affect the businesses in a practical way.” In the next question, Obama clarifies that this sense of practicality is “what empathy is to me.” This conception of empathy seems misguided. There is a difference between foresight and empathy. Because of a judge’s knowledge of economic laws and how the world works, a judge can foresee that a law will have adverse consequences—say, limiting a poor farmer’s profits. The judge does not need to feel as that poor farmer feels to reach a good decision. Maybe that judge understands how the world works, but he doesn’t necessarily have to feel as the farmer feels to reach a good decision. Having a practical sense is not equivalent to having an empathetic one, but Obama speaks as if it were, using an “awfully elastic” meaning of empathy as well.
And let us remember that the jurisprudence is not entirely concerned with the consequences of statutes and laws. In fact, much of the rights disputes that come up before the Supreme Court are not consequentialist at all. Much of the law, particularly in the US, deals with rights that have been set aside as of such importance that popular sentiments and opinion cannot override them. When determining whether a statute violates the First Amendment, for instance, a judge needs to analyze the meaning of the First Amendment and see whether the statute at hand conforms to that meaning. A judge may hate what a party in the case has spoken or published (having no empathy for them) but, because of the value of free speech, still rightly rule in favor of them. Empathy should not play a significant role in the judge’s decision-making process in this situation.
Legal scholar Ilya Somin extends this argument against the use of empathy by claiming: “Empathy usually leads us to focus on a clearly visible, sympathetic person who has suffered some sort of readily apparent harm. But it is often difficult or impossible to feel empathy for people we never see who may be victimized by the indirect or unintended consequences of a decision. To take an example from my own field of property law, judges can easily empathize with upper middle class people who use restrictive zoning rules to maintain the attractive ‘character’ of their communities. It is much harder to see how these laws often zone out the poor and create housing shortages. The people barred from a community by exclusionary zoning are generally invisible to judges and impossible for them to identify with, much less empathize with.” In other words, empathy can be misleading even when empathy may seem to be the relevant characteristic to guide a decision. A sense of practicality—understanding the unintended consequences of zoning laws, for instance—may be of great help, but this could easily be contradictory to the decision a judge would reach through empathy.
In sum, empathy is a valuable characteristic for legal questions when relevant given a particular legal doctrine. But, when not doctrinally relevant, empathy can be misleading, resulting in less than optimal decisions. Moreover, Obama conflates empathy and foresight, which muddles the debate and leads Obama to overstate the importance of empathy.
So, should empathy—properly defined—be something that is looked at when nominating a Supreme Court justice? I see no problem with it being one of a variety of factors examined, but it certainly should not be given the weight that Obama gave it.
Now, I sincerely hope you readers understand where I’m coming from.