Ryan Sager picks an unfortunate example to make a valid point about the idea of “empathy” as a qualification for a seat on the Supreme Court:
Now, I’m not necessarily arguing that it’s right [in the famous Trolley Problem] to push the fat man — or for the government to “push the fat man.” But the two variants of this dilemma show how our irrational social emotions interfere with how we dispense justice. In fact, a study found that a certain type of brain damage could affect how people judged scenarios such as these. According to the study, “damage to the ventromedial prefrontal cortex (VMPFC)” — a brain region necessary for the normal generation of emotions and, in particular, social emotions, such as empathy — “increases ‘utilitarian’ choices in moral dilemmas — judgments, that is, that favor the aggregate welfare over the welfare of fewer individuals.”
Which judge would you rather have? The brain-damaged judge who can put aside social feelings and arrive at the formally correct answer? Or the judge who won’t push the fat man when the fat man needs to be pushed?
The opening caveat notwithstanding, I wouldn’t have gone with this example precisely because whatever one thinks of it from a strictly ethical point of view, I think there are excellent institutional reasons for drawing some sharp distinctions between what the government may deliberately do to people and what it may countenance as a side effect of otherwise permissible actions. More generally, the law is an evolved and evolving pastiche of domain-specific rules; there is almost certainly no higher-order moral theory into which they all coherently fit. In some sense, then, you can probably characterize certain groupings of “correct” rulings as jointly irrational, but I’m not terribly sanguine about judges who see it as their mission to correct this defect in some systemic way. One of many ways to interpret the trolley problem is as illustrating a distinction between “rational” and “emotional” decision making. Another, however, is as highlighting the difference between telic and nomic decision procedures: Is the ultimate authority here a goal (maximize welfare) or a rule (don’t intentionally harm others)? Broadly speaking, our system’s division of labor suggests that we want more goal-focused legisators and more rule-observing judges.
Anyway, it seems unnecessary to fuss with trolleys, since Sager’s central point (absent the neurological trappings) is extremely well put by Hume in the Treatise of Human Nature:
A single act of justice is frequently contrary to public interest; and were it to stand alone, without being follow’d by other acts, may, in itself, be very prejudicial to society. When a man of merit, of a beneficent disposition, restores a great fortune to a miser, or a seditious bigot, he has acted justly and laudably, but the public is a real sufferer. Nor is every single act of justice, consider’d apart, more conducive to private interest, than to public; and ’tis easily conceiv’d how a man may impoverish himself by a signal instance of integrity, and have reason to wish, that with regard to that single acct, the laws of justice were for a moment suspended in the universe.
Or, briefer still: Hard cases make bad law. As Sager points out, while it’s usually leftish folks who think empathy is desirable in a judge, litigators on the right know how to look for sympathetic plaintiffs too: the small farmer ruined by a spotted owl; the rape victim who couldn’t buy a gun to defend herself. Whichever way it cuts ideologically, your feelings about the litigants in particular case don’t seem like a reliable guide to either good policy or sound legal interpretation.
The main advantage I see to more “empathic” judging is highlighted by a case that’s been much discussed recently as an example of why the court’s gender balance matters: A school’s unconscionable decision to strip search a 13-year old girl (wrongly) accused of having given a friend prescription ibuprofen. Insofar as the Court employs “balancing tests” to resolve conflicts of constitutionally protected interests, you need judges who are capable of actually understanding the interests at stake. The idea is not that the judge should dispense with concern for the legally correct outcome and seek the more emotionally satisfying one, but that determining the legally correct outcome requires a measure of emotional intelligence in order to correctly weigh the claims that need balancing. It’s hard to determine whether a certain type of intrusive search is “reasonable,” or whether a law has a sufficiently strong chilling effect to trigger First Amendment scrutiny, if you can’t really imagine yourself in the position of someone subject to either. That said, I tend to think it would be better if the Court came up with decision procedures a bit more fully specified than “eyeball it and do a gut check,” relied less on balancing tests, and had commensurately less need for empathetic justices.