The Hollow Concept of Judicial Empathy

-- By JessicaCohen - 06 Apr 2010

Obama's Litmus Test?

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About three weeks ago, our Constitutional law class arrived at Roe v. Wade. After running through the doctrinal distinctions among the three trimesters and the textual underpinnings of the decision, our professor introduced the concept of “judicial empathy” to the class. Blackmun’s opinion, he argued, was special – and admirable – in that he grounded his views partially in the plight of women with unwanted children (who would be stigmatized and otherwise stressed) and would-be aborted children who do not receive adequate love and care. Such empathy, I thought, was hardly first displayed in 1973. Brown v. Board of Education (1954) was at least somewhat decided with an empathetic, “bleeding” heart. Same with Heart of Atlanta Motel and Katzenbach v. McClung? . So was Muller v. Oregon, for that matter, where Brewer wrote “that woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious.” Ad infinitum. Empathy was nothing new.

I realized that each of the opinions that came to my mind had been written by liberal justices and were about the protection of minorities in one facet or another in American societies (these in particular were about women and Blacks). I asked the professor whether being empathetic is inherently a liberal quality, or at the least easier for liberal judges. He turned the floor over to a classmate, who urged me to look at the dissent in Kelo. I did – and there’s a tad of empathy there (by Thomas, who felt for the “poor communities” who would likely bear the brunt of the majority’s decision) – but not of the same quality in the cases that came to mind.

In light of the fact that Obama’s proclaimed penchant for judicial empathy likely led him to choose our most recently appointed Supreme Court justice and will almost certainly inform his next choice, it’s worth considering 1) what judicial empathy actually is, 2) whether it is in fact unique to liberals, and 3) if 2) is true, what that means.

Obama first made known his appreciation for judicial empathy at John Roberts’ confirmation hearing, in 2005. It was the “5 percent” of cases, the really tough ones, that he felt required empathy on behalf of the disenfranchised and immobilized. Roberts, in Obama's estimation, did not have it. After participating in the 2006 filibuster of Samuel Alito’s confirmation, Obama shared a similar gripe, saying that Alito had a Pavlovian impulse to favor employers over employees. And Obama famously lauded Sonia Sotomayor's experience as providing her with the ability to emphathize, though she rejected Obama's view at her confirmation hearings. (Sotomayor ironically referred to herself as an “umpire” in judging.) So is “empathetic” simply a code word for liberal?

What Is Judicial Empathy?

According to Obama -- for all intents and purposes the most relevant opinion here – empathy means having “common sense, practicality...” and “a sense of what ordinary Americans are going through everyday.” On top of that, however, Obama has repeatedly referred to understanding the troubles of the “powerless” in society when elaborating on empathy. Geoffrey R. Stone, writing in the New York Times a few days ago, stretches empathy to a somewhat absurd result. He says, "...empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities." Though he also claims empathy means having an eye for real-world consequences (the unarguably good kind of empathy), his definition, I think, empties empathy of all its significance. That, or Stone's definition is another way to hide the fact that being empathetic means being empathetic to minorities, women, etc.: liberal.

Conservatives have had at least two responses to the talk about empathy. First, some argue that empathy should not be (and is in fact, antithetical to) the way in which judges should interpret the Constitution. Jonah Goldberg, writing in the National Review, argues that judges should analyze the Constitution from a textual and historical perspective (in traditionally “conservative” modes of argument) and employ Weschler-like neutral principles to every case. Goldberg quips: “What I don’t understand is why we should abandon an ideal [of being impartial] simply because it is unattainable...If an umpire can’t call each game flawlessly, should he stop trying? Maybe for 95 percent of pitches the ump should call ’em straight, but for the other 5 percent he should give the black or gay batters the benefit of the doubt?” He calls empathy “state-sanctioned prejudice.”

Other conservatives take a different route – the one of my classmate – and say that conservatives are empathetic too, just not necessarily for racial minorities and women and gays. A media watchdog blog rightly points out that both Thomas and Alito called upon their personal experiences during their confirmation hearings. Alito spoke of connecting his family's experience with discrimination to hearing cases on immigration. And there have been a few instances of conservative "empathy," in the liberal construct of it: In Gonzales v. Carhart for instance, Kennedy spoke of the “anxiety” women might feel when hearing about an “invasive medical procedure.” And perhaps the dissents in any number of cases on affirmative action were motivated by empathy for whites who were de facto disadvantaged by the rulings. In other words, conservatives could say they're empathetic too - just empathetic for other groups of individuals. I assume part the reason conservatives rarely do this is is how unpalatable it would sound for a conservative justice to rule against a plaintiff in a civil rights case because he feels for the whites who are being maligned against.

So What?

Being empathetic could just mean having an eye for the practical results of opinions, a mode of interpretation that's difficult to find fault with. Obama sometimes tries to put empathy in that light, but more often than not, he turns it into a coded test for certain liberal issues. Realizing that the term is basically empty – or just a code for socially progressive – can cut both ways. If Obama is able to continue to dupe the public into thinking his empathy is some sort of objective (neutral?) quality in future justices, he may find it's a successful tactic (and trickle down to support liberal judges across the Country). On the other hand, if conservatives successfully pull the rug from under "empathy," Obama may be left looking like a bleeding heart to the public. Over the course of the next few weeks, we'll surely confront the issue again as Obama names his next appointment. It would be unthinkable for Obama to choose a conservative justice who “empathized” with the big corporations rather than individual plaintiffs who sue them on civil rights or other grounds.