Judicial Empathy: Crucial Protection or Erosion of Justice?

A case for and a case against empathy, as Obama picks his Supreme Court nominee

As the debate over Justice Stevens's replacement on the Supreme Court ramps up, the word "empathy" is again being tossed around. Empathy was a big topic of discussion during Justice Sotomayor's nomination and confirmation process. President Obama stated that it was one of the qualities he wanted in a justice, and said during the campaign that a he valued a judge who understands "what it's like to be a young, teenage mom ... what it's like to be poor or African American or gay or disabled or old."

On Wednesday, University of Chicago law professor Geoffrey Stone (writing in The New York Times) and conservative columnist Jonah Goldberg (writing in National Review) each present their case for or against empathy as a judicial quality. Along the way, they also touch on the notion of liberal judicial activism or conservative judicial restraint--a debate that The Atlantic's Michael Kinsley also recently weighed in on.

• For Empathy  The framers, Stone argues, emphasized the "power of judicial review" as a correction to democracy's imperfection: "the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority." They also left many of "our most fundamental rights in open-ended terms," relying on "future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations" like "free speech" and "equal protection under the law." Thus, he says, empathy does two things: it (1) "helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities" and (2) "helps judges understand the effects of the law on the real world." En route to this conclusion, he points out that the idea that "conservative judges apply the law, whereas liberal judges make up the law" is a myth: conservative judges have often made bold decisions far from the framers' intent. He points to the Citizens United ruling, which determined that "corporations have the same right of free speech as individuals," as one example.

• Against Empathy  Empathy runs directly counter to the idea that justice should be impartial, counters Jonah Goldberg. "According to Obama ... in 95 percent of the cases, precedent and the law are clear enough for judges to go with the rules, but in the last 5 percent, judges have got to have a heart that bleeds for certain kinds of people." This is ridiculous: "Of course impartial justice is an abstraction, but it isn't so much a myth as an ideal ... What I don't understand is why we should abandon an ideal simply because it is unattainable. If I can't be a perfect husband, should I get a divorce?" He also thinks liberals' idea that Justice Stevens had empathy, and thus can understand "poverty and race," yet Clarence Thomas, "born dirt poor and black," can't is rubbish--liberals make this argument merely because they don't like Thomas's rulings.