The Problem With Empathetic Justice
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 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.