Ever since Barack Obama identified empathy as one of the qualities essential for his Supreme Court nominee, there has been much hilarity and criticism coming from the right about the president’s use of the E word, which—it was insisted —was code for….well, all sorts of things..
But what of empathy on the Court?
In next week’s issue of America, the National Catholic Weekly, Douglas W. Kmiec, chair and professor of constitutional law at Pepperdine University, explores whether empathy should or should not be important in a jurist. After all, he writes, doesn’t “… empathy require raising the blindfold to see who is before the Court, and if so, doesn’t that in itself subvert impartiality?”
The rest is worth reading. I don’t know that I agree with every single line of it. You probably won’t either. But Kmiec opens the door to a thoughtful discussion. (Unlike the cable news pundits and their idiotic “decoding.”)
Here are a few clips from Kmiec’s answer to the question at hand:
Empathy is an attractive idea, but it requires some careful unpacking. Judicial officers do, in fact, take an oath to apply the law “without respect to persons.” No one should win or lose in Court because they are rich or poor or black or white. Yet to be evenhanded is not the same as being uncaringly formalistic or concerned only with systematic consequences. Real litigants stand before the Court. No offense to all the highly talented appellate judges on the president’s short list, or even to my fellow academics, but both talent pools give almost exclusive emphasis to the law’s doctrinal development–the “footnotes in a casebook” as the president put it, rather than the impact of those developments on individual citizens. A few theoreticians in the mix makes sense, but the Supreme Court is now entirely their domain. Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture.
But do we know empathy when we see it? Maybe not….
[HUMONGOUS SNIP]Empathy yields one additional lesson: law is no substitute for love. Yes, it is wrong when the Court usurps legislative function or when it disregards the structure of the Constitution that reserves appropriate questions to the states. Yet it is empathy that gives insight into where exactly no government—federal or state—should be involved. In times past, it may have been possible to count upon church or competing private institutions to maintain this boundary between what is public and what is private, but these independent sources of moral formation have also come to overly rely on the crutch of law’s coercion.
In the end, however, coerced morality is without meaning or lasting effect. In the words emblazed upon the New Hampshire license plate that will likely soon again adorn David Souter’s car, we are to “live free or die.” A judge with an empathetic understanding of the Constitution would grasp all that means.
These two clips are the beginning and the end of the essay. I recommend you read all that is in between.
Interesting enough article. The empathetic approach is certainly a different way of thinking about things but it strikes me as valuable if not a true substitute for a judicial philosophy.
One thing I’ve never really understood is original intent. I just don’t get why a bunch of judges think the best way to determine law is to divine the intended meaning of it’s authors. If anybody really believed that wouldn’t they want some court historians? Or linguistic anthropologists? That’s a series question. If anybody knows where to find a good defense of original intent, I’d love to read it.
A curious historical side note: Marbury v. Madison, which established the Supreme Court’s role as constitutional protector, didn’t occur until 1803. Simply, a court that rules on constitutionality was not envisioned by the framers (or at least not while they were framing). So, if you believe in original intent shouldn’t you believe that the courts aren’t authorized to rule on the constitutionality of a law? Also, if you travel back in time and kill yourself don’t you die at that earlier age and fail to grow up and kill yourself? Help!
Andrew Jackson: John Marshall has made his decision, now let him enforce it!
That was the views of an early leader on the role of the federal judiciary.
Mavis, our legal system is based upon our original Constitution as established by the states, and it includes historical guidance going back to the Magna Carta and English Law as far back as the 12th century. There are enough constitutional scholars and historians who know the intent. Unfortunately, there are enough clowns who can make up new ones.
The defense of original intent is that we have a system of checks and balances. Only the legislative branch is supposed to make law, and we vote on those legislators to represent us for certain terms. When the Supreme Court rules contrary to legislative intent, then it has overstepped its role. We don’t vote on Supreme Court justices, and Supreme Court justices serve for life.
I’ve even seen justices ordering taxes on citizens of a city. It’s typically for some social engineering program of the judge, and the judge threatens the mayor and council with severe penalties if the taxes aren’t collected. There’s one problem. Judges are not allowed to assess taxes.
Can you tell me where a “right to privacy” exists in the Constituion? Only liberal judges with no respect for our laws could find it to make it legal to kill unborn children.
I especially don’t like it when Justice Ginsberg uses rulings and laws from other nations to interpret our Constitution. We don’t need to add any judicial nuts who can’t remove themselves emotionally from a decision.
In fact, wouldn’t it be nice if female justices recused themselves during the period of the month when their hormones are raging and their emotions have them flipping out?
Woody, original meaning (Justice Scalia’s preferred approach) doesn’t stop at the founders. It continues on today. It says that a current supreme court justice interpreting previous law should determine what the law meant to a reasonable citizen at the time of its passage. That doesn’t just mean the constitution. It also includes laws written and signed by every president and every congress in the history of the country. And it requires that the judge have a reasonable idea of how a contemporary citizen would have understood that law. That strikes me as impossible.
As to your trolling sexist comments, well, you can go fuck yourself.
Woody, Viceroy of the Filter Tip.
For heavens sakes, tomorrows Mothers Day, and I want all you rascals, scamps, curs, good-for-nothings, knaves, varlets, snakes in the grass, bounders, reprobates, hellions, rapscallions, evil-doers, and mischief-makers to wish Ms Celeste Fremon a Happy Mothers Day. Show some respectability around here gentlemen… and I use that term loosely!