Empathy and Law: A False Dichotomy

PHUTATORIUS
As the Sotomayor confirmation hearings continue this week, and as folks like Jeff Sessions get all worked up about (1) President Obama's invocation of "empathy" as a quality we'd like to see in the judiciary, and (2) whether it's reasonable to suggest that a person's background and life experience might have something to do with what they would decide as a life-tenured judge, it's important, I think, to introduce just an eensy-weensy bit of reality and perspective to the discussion.

Now I know that "reality" and "perspective" are natural enemies of the sort of feigned outrage we're seeing from Sessions, who is, apparently, the GOP's attack dog here. So to suggest that the Junior Senator of Alabama constrain himself to these values is sort of like asking a bulldozer to pause and consider the structural integrity and refinement of the building in front of it. But we're all about lost causes here at Feigned Outrage. (So says Google Analytics, anyway.)
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The right-wing talking point goes like this: Judges shouldn't act on mushy concepts like "empathy." They should follow The Law. And if they act on "empathy," they're not following The Law, and they're suddenly — and this is a beloved bromide of the judge haters — "making law rather than applying the law."

And of course anyone who knows anything about how the law works — and this should include you, Senator Sessions, given that you were once Alabama's Attorney General — would know that it is an exceedingly rare occasion on which a judge has to choose between the Empathy Answer and the Law Answer. This for two reasons:

For starters, despite Congressional Republicans' best efforts, Empathy is often incorporated into The Law. In fact, a great deal of our most important and treasured laws — our Constitution's First Amendment and Equal Protection Clause, the Voting Rights Act, the Civil Rights Act of 1964, shoot: even the stimulus bill, if you still believe in it — are monuments to empathy.

A bunch of white guys don't pass the Civil Rights Act of 1964 unless they're capable of empathy. Sure, if you're cynical (and I'm not, by the way: well, not on this point), you could say that they acted in the interest of securing the stability of the nation by extending protections to an increasingly marginalized and dissatisfied underclass. But even to get to that point, to realize that a law was necessary, if not desirable, you have to be able to consider the perspective of someone from a different background. To know the real effect of a law, you have to consider — you have to predict — how it will affect the people subject to it. Sounds like "empathy" to me, and it sounds appealing.

Second, and probably more important: at the Supreme Court level there aren't that many cases in which The Law obviously compels a certain result. Sure, folks in the gallery may feel that way — and the lawyers at the lecterns may argue that way — but the questions before the Supreme Court are the tough ones. They're the questions that Congress didn't anticipate when it enacted a law. They're the questions on which the several Courts of Appeal couldn't come to agreement. The business of the courts isn't just to override the express will of elected officials and legislate by fiat. That's a happy last point of argumentative retreat when you don't like what a court decided. The job of the courts is to fill in the gaps in the law: to decide what the law means and how it applies when the Framers and Congress, despite their best efforts, left open litigation points.

Certainly as a critic, on the sideline, with a vested ideological interest in the outcome of a case, one can talk oneself into believing that The Law compelled a certain result — the result that one favors. And working backward from that point of epistemological certainty (and this is a space folks both on the left and on the right are comfortable working in, although I would submit that liberals may be more susceptible to uncertainty and less attracted to batten-down-the-hatches-style conviction), one can conclude that the judge who ruled in the other direction was necessarily led astray by impermissible considerations — human failings like bigotry, callousness, religious zealotry, provinciality, venality, empathy. (Wait a minute: empathy? Is that so bad?)

But I'd submit that this isn't a fair or realistic way to review the actions taken in most Supreme Court cases — and certainly in most of the high-profile, front-line-of-the-culture-war cases. The fact is that The Law very, very often doesn't compel a certain result, and it's up to the Justices to do their best to untangle the complexities of a given case and decide (gasp!) what result The Law should compel. A whole host of considerations necessarily leak into that process, and we can talk about what considerations should and should not be permissible. But the notion that a judge should draw on his or her own personal background and experience — that is, the accumulated data that form the basis for their exercise of wisdom — should not be controversial. We can idealize a Law that is so compelling that wise white men and "wise Latinas" would spit out the same outcomes. But that Law doesn't exist, principally because law is an artifact of humankind, and it therefore incorporates all of our best intentions and failures to meet them. It reflects our diversity of opinion and interests. Law is emphatically of the people, by the people, for the people, and when a judge is called upon to decide a case, it seems to me entirely appropriate that the judge should keep in mind that his or her decision is not one made in legal abstraction — it's not a matter for cerebral processing or an exercise of rhetoric and logic — but one that will absolutely have consequences, and generally very significant consequences, for real people.

That, at least to me, is the role that "empathy" should have in judging. And I think it's important.

Varnum Decision: Well Said, Your Honors

PHUTATORIUS
Here is a copy of the decision handed down by the Iowa Supreme Court in Varnum v. Brien, which invalidated Iowa's "man and woman only" marriage law.
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I've argued more than once (to M'dates and V'torix in email, on The Volokh Conspiracy whenever I get worked up) that, despite the chorus of complaints from the right every time one of these decisions issues, it's really not the worst thing in the world to deposit with the judiciary the final authority on interpreting constitutional commands like equal protection.

I realize that conferring that authority on a small group of human beings requires a certain amount of blind trust. Quis custodet custodes? everybody on the losing side of a constitutional decision wants to know, when that decision comes down. Who watches the watchmen? And it has become a common practice for people to wrap their displeasure with the decision in an indictment of "runaway ativist judges." "The people make a decision," the complainers complain, "and these judges, who answer to nobody, overrule it. It's undemocratic."

To which I answer: the buck has to stop somewhere. We have constitutions — and the provisions for equal protection within them — precisely because we're not all that trusting, either, of public officials and the political majorities who shuttle them in and out of office. We need someone to measure our laws, the actions taken by our government under them, against our constitutional principles. We could let government actors self-police, or we could refer the questions to another authority.

The more, the better when that other authority employs in its decisionmaking the kind of thoughtfulness, intellectual rigor, and sound argumentation that the Iowa Supreme Court supplied here. Of course I support this outcome, because I support the rights of gays and lesbians and, among them, the right to same-sex marriage. But putting my own prejudices (or lack thereof) aside as best I can, I want to say that anyone who cares about how our government works — including those who profess to be so very concerned about the powers of judges — should take great heart from reading the Varnum decision. By the time one finishes reading it, it's hard to conclude that the Iowa justices took this matter lightly or regarded the case as an occasion simply to impress their own personal whims on the public.

And this is important to remember: it may not seem like much, but there is a centuries-old tradition of jurisprudence by which judges recognize that, when they reach a decision like this, the public is entitled to a careful, written explanation of how they reached it. They recognize, too, that in these writings they need to show deference to the determinations of the political branches, and they need to follow or distinguish with compelling argumentation existing precedents from other courts. Even where a highest court, like Iowa's here, is in a position to announce a new binding interpretation of law, or to depart from precedent in favor of a new rule — even here, judges more often than not do the good work of ensuring that their decisions are factually, logically, and rhetorically defensible. This is an institutional check on judging that has, as I've written, centuries of momentum behind it, and judges do not lightly dismiss it.

Oh, sure: it's worth remembering that judges were once lawyers, and so they have years of training and experience in self-serving justification, the manipulation of language, and so on. But at least they're required to go through the exercise of writing up their decisions. I'd be surprised if any one of the state legislators who voted on the law invalidated here (for or against) put anything close to 10% of the thinking into the question that these Iowa judges did.

So yeah, I don't feel great that somebody has to (and therefore gets to) make supreme, binding interpretations of what our federal and state constitutions say. But that's a fact of life, and I do feel pretty good about the sort of people to whom we entrust this great responsibility. Especially when they're as respectful, cogent, deliberate, and complete as the Iowa judges who signed on to this decision.

MITHRIDATES
Well written (both case and commentary). A few thoughts to add:

• The pros and cons cited by the plaintiffs and defendants are quite telling (pp. 9-11). The plaintiffs outline a number of tangible ways in which their lives are negatively affected; the defendants speculate about unsubstantiated negative repercussions — which the plaintiffs refute with scientific evidence. There are real benefits to allowing civil marriage, but the defendants can't provide any real disadvantages.
• The justices do an excellent job of explaining why the courts should, on occasion, overrule the other branches of government:
  

The idea that courts, free from the political
influences in the other two branches of government, are better suited to protect individual rights was recognized at the time our Iowa Constitution was formed.

and

A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional
beliefs and popular opinion.

• Finally, I just thought this quote was great. Times change. Society advances. So must the law. Thank you, Oliver Wendell Holmes:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

PHUTATORIUS
Yours are good points. One thing that is not very apparent from the political streetfights on this issue is that the stakes for practical living are considerably higher for one side than they are for the other. When a court is asked to do the nuts-and-bolts work of weighing these competing interests, it helps clear a lot of the rhetorical fog.

This was definitely a case written not just for the consumption of the lawyers, but of the public, too. You can always tell a significant case from the length of its preamble — the ideas being (1) that the public will want an explanation that isn't peppered to death with citations (like much of the legal discussion that follows), and (2) that lazy journalists will cherrypick their quotations from just the first part.

Two sections jump to mind as directed specifically to the public and really novel and interesting in their approach. First, there's the bit in which the court describes cases where judges very controversially (at the time) struck down discriminatory laws and shows that years later, these decisions are hardly controversial, and the laws (laws that returned escaped slaves, laws that kept women from practicing law) are relics of history. Second, there's the bit in which the court confronts religion — the elephant in the room — and explains that religious belief does not present a compelling argument for rejecting same-sex marriages (given that a number of religions tolerate them), and even if it did, that basis would not be a proper consideration to guide the court.

There was clearly an effort here to confront and address every facet of this question — even those, like the religious dimension — that hover palpably over the case but are not discussed in court.

Oh, and one more thing: not a single dissenting vote on the court. Beat that, California, Massachusetts.

MITHRIDATES
" . . . lazy journalists will cherrypick their quotations from just the first part." Busted.

Appeals Court Judge Whacks Prosecutor over Salad Dressing Case

PHUTATORIUS
This is the sort of case you love to come across as a lawyer. The judge isn't just wicked smart: he's mad as hell. And in this case, he's mad as hell that the government decided to prosecute a guy who changed the "Best When Purchased By" date on salad-dressing bottles before reselling them in dollar stores.
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As terrific as Judge Posner's decision is in Farinella, it doesn't even get into the fallacy that inheres in the very phrase, "Best When Purchased By":

Suppose I bought a bottle of an edible substance that does (unlike salad dressing) deteriorate in quality or safety or nutritional value over time. In fact, suppose I bought two bottles, both from the same production lot, but as a matter of hypo-promoting happenstance, I bought one before the BWPB date and one after. Now suppose I crack both bottles open on the same day. Is the one I bought earlier really "better" than the other?