Basically, he thinks I chose a problematic example by using the famous Trolley Problem, in which someone has to divert a trolley from one track to another to kill one person instead of killing five. In a variant of the problem, the person has to push a fat man onto the tracks as opposed to pulling a lever.
Now, I admit it wasn’t the best metaphor. (Wait, is the fat man the law? Or is the fat man emotion? Where’s Jake?) But, anyway, here’s Sanchez:
I wouldn’t have gone with this example precisely because whatever one thinks of it from a strictly ethical point of view, I think there are excellent institutional reasons for drawing some sharp distinctions between what the government may deliberately do to people and what it may countenance as a side effect of otherwise permissible actions. More generally, the law is an evolved and evolving pastiche of domain-specific rules; there is almost certainly no higher-order moral theory into which they all coherently fit. In some sense, then, you can probably characterize certain groupings of “correct” rulings as jointly irrational, but I’m not terribly sanguine about judges who see it as their mission to correct this defect in some systemic way. One of many ways to interpret the trolley problem is as illustrating a distinction between “rational” and “emotional” decision making. Another, however, is as highlighting the difference between telic and nomic decision procedures: Is the ultimate authority here a goal (maximize welfare) or a rule (don’t intentionally harm others)? Broadly speaking, our system’s division of labor suggests that we want more goal-focused legislators and more rule-observing judges.
That’s right. The fat man was empathy-inducing parties, the track workers were, broadly speaking, “rules.” I was arguing that most of the time the important things the Supreme Court does involve putting rules over people — which isn’t always easy to do, but is often better for people on the whole (i.e. society).
Or, to use the phrase Sanchez brings up that I should have had in my first post: “Hard cases make bad law.”
And, of course, Sanchez is right to point out that it’s not only the Left that’s capable of playing the empathy game:
[L]itigators on the right know how to look for sympathetic plaintiffs too: the small farmer ruined by a spotted owl; the rape victim who couldn’t buy a gun to defend herself. Whichever way it cuts ideologically, your feelings about the litigants in particular case don’t seem like a reliable guide to either good policy or sound legal interpretation.
The Institute for Justice has been good at this. And God bless ‘em.
When all is said and done, I’m also not arguing that justices have no use for empathy. So long as we’re talking about non-psychopaths, they should have some empathy. As Sanchez notes, it’s what should allow them to do the balancing that they have to do in a balancing test, when it comes to difficult issues.
Being a judge, after all, does involve some judgment — if it didn’t, we’d have a judicial Big Blue that could take care of this all by now. And, trust me, Big Blue would push the fat guy every time.