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May. 6 2009 - 2:21 pm | 61 views | 3 recommendations | 16 comments

The Problem With Empathetic Justice

Antique trolley

Image by slack12 via Flickr

President Obama has announced that he wants a judge with “empathy.” According to the president, his nominee must understand justice to be “about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

On another occasion, Obama expressed his desire for “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.”

But is any of that what you actually want in a Supreme Court justice?

In a word (okay, two): Not really.

Of course, part of the problem is how the president is using this idea of “empathy” as a code. After all, empathy is an empty category. It doesn’t answer a question, it asks one: Empathy for whom? Is it empathy for the small business owner trying to get by, or empathy for the employee claiming to be the victim of some new form of discrimination? Is it empathy for the teenage killer who came from poverty and a broken home, or empathy for the family of the 20-year-old woman he murdered? Is it empathy for the interstate railroads, or empathy for the states that want to regulate them (okay, maybe this is a bad example)?

While some might make fun of conservatives for arguing against empathy, it seems to me that this is an entirely valid point. (And it seems the case for empathy is almost always tied to ends favorable to the liberal point of view.)

But let’s take the president at something closer to his word and assume that he means by empathy a concept like the dictionary definition of the word: “the ability to understand and share the feelings of another.”

Over at The Frontal Cortex, Jonah Lehrer makes the case that empathy is necessary to the work of a judge:

First of all, I can’t imagine this is good politics — do voters really want a party that brags of their callousness? …

I also think the conservative argument fails on psychological grounds. After all, the absence of empathy isn’t great jurisprudence: it’s psychopathy.

As Lehrer goes on to argue, just as the ability to feel empathy is what separates the normal person from the psychopath, the ability to feel empathy is also what drives us to render justice:

[T]hese difficult, value-laden decisions require sympathy. We abhor violence because we know violence hurts. We treat others fairly because we know what it feels like to be treated unfairly. We reject suffering because we can imagine what it’s like to suffer. Our minds naturally bind us together.

But here’s where the distinction comes in: Assuming that all the candidates for the Supreme Court opening are non-psychopaths, is the more empathetic candidate the better one?

I would argue that while the root of our sense of justice is a sort of self-interested empathy — and not inconsequentially, the desire to uphold social norms that are beneficial for society as a whole — the job of dispensing justice on the Supreme Court most often consists of setting aside emotion, and one’s identification with one party or the other, and applying the law and the constitution as they are written.

In truth, sometimes justice should act like a psychopath. Take the famous trolley dilemma:

Suppose you are the driver of a trolley. The trolley rounds a bend, and there come into view ahead five track workmen, who have been repairing the track. The track goes through a bit of a valley at that point, and the sides are steep, so you must stop the trolley if you are to avoid running the five men down. You step on the brakes, but alas they don’t work. Now you suddenly see a spur of track leading off to the right. You can turn the trolley onto it, and thus save the five men on the straight track ahead. Unfortunately, there is one track workman on that spur of track. He can no more get off the track in time than the five can, so you will kill him if you turn the trolley onto him. Is is morally permissible for you to turn the trolley?

About 95 percent of people will turn the trolley in this scenario, killing one person to save five. But then there’s the “fat man” variant:

But what about this scenario: You are standing on a footbridge over the trolley track. You can see a trolley hurtling down the track; it’s out of control. You turn around to see where the trolley is headed, and there are five workmen on the track…What to do? Being an expert on trolleys, you know of one certain way to stop an out-of-control trolley: Drop a really heavy weight in its path. But where to find one? It just so happens that standing next to you on the footbridge is a fat man, a really fat man. He is leaning over the railing, watching the trolley; all you have to do is to give him a little shove, and over the railing he will go, onto the track in the path of the trolley. Would it be permissible for you to do this?

In this case, though the hard facts are the same (you’re going to sacrifice one person to save five), almost no one will push the fat man.

Now, I’m not necessarily arguing that it’s right 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?

Now, of course, the answer to that question is: It depends. It depends on whether you’re the fat man or one of the five track workers.

For a family-court judge, or other lower-level cases, there might be plenty of instances where you’d rather have the empathetic judge. In smaller disputes, let’s say the trolley is a toy train — the track workers will survive, and it’s not nice to push the fat guy.

But the Supreme Court is more often in the position of needing to save five track workers as opposed to one fat man. And let me explain that: I don’t mean that the Supreme Court should be sacrificing individual rights for the benefit of society. This is a metaphor. What I mean is that the court must often uphold a difficult principle in the face of a sympathetic plaintiff or defendant.

No one’s going to empathize with a neo-Nazi who wants to run a hate Web site or hold a march — but the First Amendment demands we uphold an abstract principle for the good of all. Not many people are going to empathize with a flag-burner — but the Constitution demands we do that as well. No one’s going to empathize with a criminal who escapes a murder conviction because the police conducted an illegal search — but the Supreme Court has consistently held that the Constitution demands that society accept the murderer going free.

Likewise, the justices may empathize with a plaintiff who says he was let go because of his age — but if he’s a fireman or a cop or an air traffic controller, then they’ll have to set aside the fact that they “understand and share the feelings of another” and allow for reasonable age restrictions on some occupations.

So, a sympathetic party to a case is the fat man; rule of law is the five track workers. When it comes to the Supreme Court, I’m on the side of the track workers.

The possible cases are endless, as are the reasons that one might rule for or against the more empathetic side. But our justice system is built around the idea that justices should be able to get past where their empathy lies — whether it’s with black school children or white parents who don’t want their schools integrated, whether it’s with political dissidents or the people who want to be protected from the dissidents’ views, whether it’s with business or the people who sometimes feel mistreated in the economic sphere.

Do we want people executed based on whether their victims were sympathetic? Or whether the defendant is sympathetic?

Do we want discrimination law determined by whether justices empathize with the victims of discrimination?

Or do we want justice served under the Constitution?

There’s a reason that Lady Justice wears a blindfold.


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  1. collapse expand

    All due respect, I think you are dramatically overcomplicating the issue.

    A strict constructionist would be the first to tell you that empathy has little or no role in interpreting the Constitution. I’m sure that every strict-constructionist on the Court would agree that while they “feel”for anyone who has been murdered by a gun owner, this would not alter how they perceive the constitutional requirements affecting gun ownership. This does not make them bad people. It is simply a point of view that argues that the Constitution should be strictly applied.

    Obama is suggesting a somewhat different approach. The “empathy” he speaks of is a desire to see the Court allow the Constitution to be a more living and breathing document. This means it can be interpreted in the light of the times we live in. This does not mean it favors a “liberal” perspective or that somehow liberals have cornered the market on compassion, it is simply another approach to interpreting the rule of law within the requirements of the Constitution.

    Obama’s intentions are not code. They simply state his own approach to judicial review and interpretation. As the first president we’ve ever had who has a constitutional law history and record to speak to that history, his statements should surprise nobody as they are completely consistent with what he has written and taught in the past.

    No doubt, Justice Scalia would take a very different approach than Obama to constitutional interpretation and application. This doesn’t make Scalia a bad guy. He simply sees his responsibility differently.

    Although it’s fun to speculate on Obama’s appointment and what “empathy” means, why not wait until he actually puts forward a name and evaluate that person in terms of their approach to Constitutional interpretation and their views on how the Court is to be used?

  2. collapse expand

    “Is it empathy for the small business owner trying to get by, or empathy for the employee claiming to be the victim of some new form of discrimination? Is it empathy for the teenage killer who came from poverty and a broken home, or empathy for the family of the 20-year-old woman he murdered?”

    Ryan I want him/her to have empathy for both! I don’t see why you view them as mutually exclusive.

    • collapse expand

      Brian

      I think people normally have empathy for situations they are familiar with, and therefore are a little biased towards, and that is the real problem I have with “empathy” in a judge. I would rather a judge be an interpreter of the law only, and that takes a certain detachment, not empathy. The writers of the laws should be the ones with empathy.

      In response to another comment. See in context »
  3. collapse expand

    Touche, Ryan, and well said. Empathetic judges are what gave us Bush v. Gore.

  4. collapse expand

    You seem to be overstating what Obama wants. Obama indicated he wanted a judge with the capacity for empathy. Empathy for whom? EVERYONE. SIMULTANEOUSLY. A good judge, or anyone at all skilled in rational thinking is ambidextrous. They should be able to view and feel all sides of the argument and understand the views of all parties. Judicial empathy is a big deal in practical jurisprudence. Anyone who has even been in front of a judge, even for a traffic violation, knows that its terribly important to show REMORSE for your action. You would seem to imply that the state of mind of the accused plays no part in judgment. However, it plays a huge part and always has. An empathic judge is able to temper the harshness of the law and apply human rationality. Law is not a science, its a human endeavor and a good judge is human. Human, feeling, empathic judges are essential to the rational interpretation of law.

    This does not mean that a good judge uses their empathic skills as the sole, or even primary factor in their rulings. That of course should be the law.

    If you’re asking me if I think a judge with empathy is better than one without, then yes. A skill is a skill. I’d also prefer a judge who is good at math, or whom understands technology, psychology, sociology, biology, etc. These mental abilities increase their ability to make rational judgments in cases where these issues are prominent, and in our times, so many of these things are.

    Since humans are the prominent factor in MOST cases, someone who is capable of understanding someone, an empathic person, is the ideal candidate for a judge.

    This is especially true in a lot of modern cases where the intent of the people involved is key. Just look at the recent Intelligent Design litigation, the intention of the litigants was a key factor in those cases. A judge who was not empathic would be incapable of understanding that.

    • collapse expand

      “A judge with the capacity for empathy. Empathy for whom? EVERYONE. SIMULTANEOUSLY.”

      You must be thinking of God. Humans don’t empathize that way. Though, obviously they can give it their best shot.

      And, as far as lower-level judges, I’m actually inclined to agree with you that they need a significant amount of empathy.

      But the Supreme Court doesn’t judge whether a defendant has shown remorse. They decide large, abstract questions of the law that affect large swathes of society and set binding precedent throughout the lower courts.

      Give me the less empathetic justice any day. And an softie when I run a red light.

      In response to another comment. See in context »
  5. collapse expand

    Wow. It’s hard to address all the problems with this argument. One at a time:

    1.”Empathy is an empty category.” You ask, empathy for whom? For everyone, of course, or, in SC cases, for both parties. Empathy is empathy.

    2. Your argument rests on the assumption that empathy and applying the law are to some extent mutually exclusive. I couldn’t disagree more. The Constitution and many of our laws are grounded in empathy. How can you interpret them without it?

    3. You assume that there are “formally correct” answers to questions the Court faces. Seldom true.

    4. You state that the answer to the question depends on whether you’re the fat man or one of the five workers. So the only consideration is the basest kind of self-interest?

    5. All it takes is some character to act against one’s sympathies if one thinks that is the right thing to do. Are we setting the bar so low that we opt for a near psychopath instead of trying to choose people of empathy AND character?

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    About Me

    I'm a freelance writer and blogger based in Brooklyn, NY. My background is mostly in politics. I've worked on the editorial boards of the New York Sun and New York Post. In 2006, I wrote a book, "The Elephant in the Room: Evangelicals, Libertarians, and the Battle to Control the Republican Party" (Wiley). I've also done my share of freelancing, for places like the Atlantic Monthly, The New York Times, Reason, and RealClearPolitics.

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