President Obama wants Supreme Court justices who have empathy. What could be wrong with that, asks Dahlia Lithwick (“Once More, Without Feeling,” Slate.com): “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?”
It may not be that simple. Obama’s invocations of empathy combine a concern for the less advantaged with a theory of constitutional interpretation. Speaking to his choice to fill the seat soon to be vacated by Justice Souter, Obama said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
The phrase “just decisions and outcomes” seems beyond reproach (who could object to it?), but many will hear it with suspicion and say, “Just outcomes would be nice and let’s hope we have some, but what courts should deliver is legal outcomes.” You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.
It is possible then that a legal decision, a decision that has a source and a pedigree in the laws that have been formally set down, could offend one’s sense of justice. And, conversely, it is also possible that a decision widely regarded as substantively just — yes, that’s the way things should be — could at the same time be seen as illegal, that is, as not following from the rules and principles of settled law. This is precisely the criticism that has been made of Brown v. Board of Education (most notably by Herbert Wechsler in his influential Harvard Law Review article “Toward Neutral Principles”); yes, the result is good, the critics acknowledge, but where, they ask, is its legal — as opposed to its empathetic — basis? And on the other side it was said, and is still said, that any jurisprudence that cannot accommodate Brown v. Board is a jurisprudence we must reject...
Obama’s critique of formalism as a “cramped and narrow” way of interpreting the Constitution “in which the . . . courts essentially become the rubber stamps of the powerful.” A better way of interpreting, he believes, would be to begin with the conviction that “the courts are the refuge of the powerless who often lose in the democratic back and forth.” Therefore we need judges “who have the empathy to recognize what it’s like be a young teen-aged mom; the empathy to understand what it’s like to be poor, African American or gay.”
A few thoughts on this:
A more sophisticated defense of a more narrow jurisprudence, I suspect, would advocate empathy in its broadest form most discerningly applied.
The notion that the highest courts decide between the simply powerful and the simply powerless is, frankly, cartoonish. More generally courts are forced to navigate between conflicting sets of compelling hopes and struggles. The decisions made by the highest courts are, of course, applied far beyond the particular claimants in front of them. It is rather much to expect of a Justice, that she understand and identify with the hopes and struggles of the countless people her decision will touch. In any case, were it possible, it is hard to see how, in any non-trivial case, such empathy-for-all would lead to anything other than indecision.
To be clear, the President's understanding of empathy, in the quotation cited, appears itself "cramped and narrow". He advocates empathy-for-some -- the poor, African-American and homosexual -- but not all -- the middle class, Caucasian and Christian. Unlike empathy-for-all, empathy-for-some provides clear guidance in judging. In the end, what the President is looking for, appears, more or less, reducible to "empathy for key Democratic Party constituencies". Put crudely: Judges biased towards his political supporters. In other words, the President proposes an overtly politicized judiciary.
An overtly politicized judiciary -- a judiciary that is an extension of the political system -- is, of course, a reasonable desire of a politician, but no way to help the politically powerless. Politically powerful interests will, in the end, push through Justices biased in their general direction. In other words, a judiciary's ability to be a refuge for the politically powerless is strongly correlated to its degree of independence from the political process.
Read carefully, the President's view is even more anti-democratic then it appears at first glance. The notion that the highest courts are the refuge of the politically powerless is empirically false. The doors of the Supreme Court are not simply open to all. Those with the resources to get their case before the highest courts, likely also have the wherewithal to strongly influence the political process. More subtly, it is unexpected to hear this President of the United States assign the role of "refuge of the powerless" to a different branch of government. Is he not himself Champion of the Powerless? And if a Champion of the Powerless can become President, why must the courts be their refuge?
Read carefully, then, the sort of powerless that the President sees the court as a refuge for are not those who lack the resources to engage fully in the democratic back and forth, as they also likely lack the resources to present their case before the court. They are also likely not the powerless whom the President himself champions. In other words, they are not what is brought to mind by "poor" and "African American".
The third sort of recipient of empathy advocated by the President does fit the bill. Advocates of legally recognizing gay marriages are in no way disadvantaged economically and culturally, but they clearly lose out in the democratic back and forth -- to the extent that the President, the empathy in his heart notwithstanding, lacks the ability, or political courage, to champion them himself. The conclusion, then -- and I do not think this is too far a limb -- is that "empathy" in this context is code for "someone who will discover a constitutional right to Gay Marriage".
The only dimension within which advocates of legally recognizing gay marriages are in any way disadvantaged is democratically. For all their economic and cultural power -- witness Carrie Pejean -- these advocates appear near powerless politically. Which is to say, despite having every advantage in making their case, they are generally unable to convince their fellow Americans of the correctness of their cause.
To apply, then, the same sort of lens the President would apply to "formalism" to his own view: He views the courts as essentially a mechanism by which the ruling elite can impose their will in matters they cannot prevail within a democratic back and worth.
The counter-argument to this is Brown v Board. Sometimes, (or, if one is elitist: usually), the views of the ruling elite are preferable even when they cannot prevail democratically. The ruling elite ought then have an outlet with which to impose their will in that circumstance.
Putting aside any arguments of democracy, this is, on its own terms, not a particularly strong argument.
To start with, it takes a stunning lack of empathy -- in the sense, employed by the President, of "understanding" -- to identify the condition of a (perhaps well-heeled) same sex couple joined in a state sanctioned civil union which politicians refuse to legislatively label marriage as being of a kind, or one level, with the evils of segregation. Further while Brown may have been part of the historical process by which segregation ended, to give it any credit for that result is to take a particularly unsympathetic view of African- and ordinary-Americans. It is to believe that without Brown v Board, which is to say the intervention of the ruling elite, African-Americans would have continued indefinitely to sit only in the back of buses and ordinary Americans would have continued indefinitely to view that as acceptable. Factually, the times were already a-changing before Brown.
Finally, while it was certainly ground in the best of intents, it requires a further failure of empathy, in this sense of understanding, to view Brown as successful even in its most direct aim. How can one claim today, 50 years later, that we no longer have a pressing problem of unequal (and even largely separate) education? Further, without denying the unquestionable progress we have made as a society, African American families and communities have been -- in many obvious and important measures -- damaged far more then assisted by the past 50 years of "empathetic" engagement by our government -- and, in particular, our courts.
As a thought problem, imagine if the court, in Brown, had ruled more narrowly that for separate, but equal to be constitutional there had to be measurable equality. Imagine if the effort that went into defining and implementing the Brown integration mandate had instead gone into defining and implementing a "measurable equality" mandate. Segregation would today likely be just as over, and we might have had real educational equality. In other words, Brown, I think, thoughtfully considered, illustrates how a more cramped and narrow jurisprudence might better refuge the powerless then a more expansive nominally, or superficially, empathetic one.
