Empathy and Constitutional Law

Empathy and Constitutional Law May 19, 2009

Aaron Weiner, a colleague with the Center for Independent Media’s Washington Independent, has an article about conservatives seizing on Obama’s self-described search for a justice with “empathy” as their attack point on anyone he might nominate for the Court. He writes:

After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will seek in his nominee at a press briefing. Among these were “a sharp and independent mind,” “a record of excellence and integrity,” “respect for constitutional values” and “empathy.”

Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.


Here’s my favorite part:

Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”

Which makes me laugh because “activist judge” is sort of the ultimate judicial code word. All of this highlights the split between formalism and legal realism, which roughly (but only roughly) corresponds to the conservative/liberal divide. Conservatives generally believe that judicial decisionmaking is merely a question of process; apply the proper rules of interpretation and you reach an objective, non-ideological, non-political conclusion.

This is nonsense, of course; conservatives are no less likely to have their values and political views influence their judicial decisionmaking than liberals, they just pick the process that leads to the result they want (and ignore that process when it doesn’t reach that result; yes, I’m looking at you, Justice Scalia in the Raich case).

Most liberals, on the other hand, are legal realists. They tend to think that a judge ought to bring their values and ideas to the table. At the very least, they recognize that it isn’t possible to leave such things behind entirely anyway. That doesn’t mean that they ignore process questions entirely, of course. A legal realist would likely look at formalist rules of interpretation like originalism in its many forms as tools in the judicial interpretation toolbox, just not the only tool one could use.

But there are many facets to this debate that are being ignored, oversimplified in all of the screaming from conservatives about how “empathy” means “judges doing anything they want and ignoring the law.” Orin Kerr digs a little deeper and tries to discern what Obama means by empathy and I think he’s on the right track. The key, he says, is in how liberals and conservatives conceive of how to handle the close cases.

First, we have to recognize that most of the cases that come before the Supreme Court are going to be close cases, cases where there is a pretty good argument to be made on both sides. This is so because they tend to take cases where other courts have reached conflicting decisions, or had a difficult time reaching any decision because the facts of the case were so novel or the precedents so muddled. Unanimous cases at the Supreme Court level are rare.

Obama himself noted this and provided the framework for why empathy matters when he announced his vote against John Roberts:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Now, I don’t think he stated that argument very well. I tend to be annoyed by “heart talk.” The heart pumps blood and that is all it does. This silly romantic notion that the heart is the seat of our emotions is absurd and should be dropped. But I suspect Obama knows that and is just using common cliches that, when translated, actually do make sense.

And here is where conservatives and liberals would tend to differ, at least in theory. Conservatives would tend to argue that in such close cases, a judge should defer to the elected branches of government; a liberal, on the other hand, would tend to argue that in such cases, the judge should try to do what is most just or fair.

These are just general tendencies, of course, and they change over time – at least partly due to the makeup of the elected branches. Bear in mind that the notion of judicial deference, or presumption of constitutionality, was invented by liberals during the New Deal era who thought judges should not strike down legislation that expanded the welfare state and government regulation, while it was conservatives at the time who demanded “judicial activism” to overturn FDR’s agenda.

Kerr writes:

I think this explains Obama’s view of “empathy.” Obama sees empathy as critical because he thinks that judges in close cases have a free choice as to which side should win. A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless.

I think that’s probably true. What Obama means by empathy is that he wants a judge who, in close cases, will seek the most just or fair result because the legal question is pretty much a toss up. And I think that’s pretty much correct, though I would also note that sometimes the fair or just result means the powerless will lose. The mere fact that one side has power and the other does not is not necessarily an indication that the powerless side is correct or that the most just result is to vote in their favor.

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