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Law and Empathy

February 28th, 2008 · 4 Comments

I’m fairly sympathetic to Stephen Bainbridge’s critique of Barack Obama’s conception of what makes for a good Supreme Court justice. According to Obama:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

I’ve complained before about the tendency, which I think is at least somewhat more pronounced (or at any rate, more overt) on the left to evaluate legal decisions by asking whether we like the group that benefits from a ruling in a particular case.

That said, I’m not sure it’s totally irrelevant to ask whether the justices are able to do this kind of perspective-taking. A lot of important decisions come down to a balancing of interests, which requires judges to be able to evaluate not only the letter of the law, but its practical effect, and the implications of contested statutes for core constitutional values.

Consider, for instance, NAACP v. Alabama (1958). The question there was whether the state of Alabama could compel the NAACP to disclose its membership lists. The Court ruled that it could not, that the rights of free association and political speech encompassed a right to anonymously make common cause with others to pursue political goals. Now, one can certainly object that no such right is explicitly protected by the Constitution. Rather, the decision turns on the (clearly correct, I think) recognition that the rights are so closely bound together in practice that you need to protect all if you’re going to protect any one. Certainly, you can point to the history of the American founding in support of that notion—a Court that cites the Federalist Papers is in no position to disparage anonymous collaborative political action. But you also, I think, need some sense of the real chilling effect (or, more properly, the burning effect) of being publicly named as an NAACP supporter in certain parts of 1950s Alabama.

All of which is to say, while I don’t want to be too charitable to Obama or to endorse the idea that rulings should be governed by which disputant tugs harder on one’s heartstrings in the instant case, getting the right legal answer does sometimes demand a measure of empathy. In order to acknowledge how profoundly sodomy laws impinge upon the liberty interests of gay people, straight judges needed to appreciate the centrality in the lives of others of private practices that most of them have little interest in. (Though I suppose Justice Scalia never did answer that NYU student’s question.) And this is true, I think, whether or not one thinks Lawrence v. Texas was rightly decided, all things considered. Sometimes, at least, the proper interpretation of the law is inextricably linked to a rich sense of how it affects people in circumstances very different from one’s own.

Tags: Law



4 responses so far ↓

  • 1 Raghav // Feb 28, 2008 at 9:05 pm

    Couldn’t this be just a fluffy way of saying that he would appoint judges who would try to protect “discrete and insular minorities”—the sort of jurisprudence most famously defended by John Hart Ely in Democracy and Distrust?

    There’s plenty to disagree with in such a theory of constitutional adjudication, but I don’t think it’s unprincipled in the sense that it directs judges to vote for the same outcome they would as a member of Congress. After all, Ely came out big against Roe.

  • 2 Hui // Feb 28, 2008 at 11:12 pm

    Not sure I see any agreement with Bainbridge here. He seems to think that empathy is never — in any case under any circumstances — necessary or a good thing.

  • 3 Tony // Feb 29, 2008 at 9:36 am

    Your assessment is a well-thought-out version of my initial reaction to Prof. Bainbridge’s concern.

    Sen. Obama’s statement is worrisome, but I don’t consider it any less worrisome than legislators taking the exact opposite approach and demanding stiff penalties for any offense against society’s sensibilities. We should punish crime (with a libertarian perspective, of course) but punish with an understanding that an offender’s actions aren’t necessarily caused by an irredeemable unwillingness to get along in society. Three strikes laws are the mirror image of what Prof. Bainbridge doesn’t like about Sen. Obama’s remark.

    (I have no idea what Prof. Bainbridge thinks of three strikes laws. I’m claiming nothing more than very few in public life act in any way different than Sen. Obama’s statement.)

  • 4 Other Ezra // Feb 29, 2008 at 1:35 pm

    I’ve complained before about the tendency, which I think is at least somewhat more pronounced (or at any rate, more overt) on the left to evaluate legal decisions by asking whether we like the group that benefits from a ruling in a particular case.

    Overt is the keystone here. Surely you don’t credit conservative mouthing of the phrase “strict constructionist,” as meaningless a term as any in politics.

    An umpire who calls everything for the home team, if asked to explain his reasoning, would like as not echo Justice Roberts’s homily on “balls and strikes.” He might even believe it.