What's Wrong With Empathy?

I truly don’t get it. Empathy is “code” for judicial activism? “Judicial activism” is obviously code for the judging of Democratic judges. What “empathy” is obviously code for is a group-identity-based nomination, in particular the nomination of a woman. And what’s wrong with that?

One of the deepest problems in philosophy is the relationship between general rules and their application in particular instances. Rules don’t apply themselves. And there can be no infinte regress of rules that tell us how to apply rules. Judgment is completely unavoidable. And, hey, maybe there’s a reason we call judges “judges”!

Anyway, suppose there’s a fact of the matter about the external totality of facts that constitute a “situation.” (This is a problematic supposition; it’s not so easy to individuate “situations”– but suppose.) This totality can’t possibly fit in anyone’s head, so the situation has to be edited by selective awareness. So we’re left with a perception of the situation as edited by habits of attention. Within one’s perception of the situation, certain features will stand out as especially salient. This can be moral or legal salience or something else, depending on the purposes of judgment. One’s history is obviously relevant to the habits one brings to attention and to the recognition of features of a situation relevant to judgment.  One way a rule may be misapplied is to fail to recognize the relevance of an objective feature of the situation to the rule. This can happen at the initial step of editing — one doesn’t notice the feature at all — or at the step of the judgment of salience or relevance — one doesn’t see why it matters.

Even when there is unanimity about the meaning of a rule, there may be disagreement about whether and how a rule applies in a particular instance due to differences in the habits of attention and sentiment that guide judgment. If a society has a history of inequality, people within different groups may have developed very developed very different but also very reasonable habits, and will therefore make very different judgments, for good reasons, even if there is zero disagreement in the abstract meaning of rules.

The Supreme Court is a deliberative body. If it is extremely homogenous in composition, there’s a good chance that judgment will become biased in the direction of the characteristic habits of the largest group. Difference in ideology provide some check, but they may also paper over subtle an not-so-subtle uniform assumptions that lurk behind political and methodological disagreement. Some of this sort of disagreement may be over the relevance of things like empathy to legal judgment in constitutional cases, but surely the capacity to put oneself in the position of parties involved in a case before the court is relevant. And the ability to put oneself in the position of another is certainly improved if one has at some point been in a similar position. (E.g., No man was ever a teenage girl; white people rarely face the kind of subtle discrimination routinely experienced by even privileged black people; etc.) One plausible understanding of “empathy” in this context is simply a heightened sensitivity to features of certain kinds of cases that are missed or downplayed due to the habits of mind and sentiment common to most current judges.

I think that, other things equal, the Court would improve the quality of its judgment by including more women and minorities. However, other things aren’t equal. My sense is that the best-qualified women and minorities are likely to have substantive views about Constitutional interpretation I disagree with. So I’m likely to be unhappy with Obama’s nominess because of ideology. But holding ideology fixed, I think there’s a strong reason to prefer a well-qualified woman to a well-qualified man. And I think another woman would likely increase the scope of empathy on the court in a pretty straightforward and desirable sense.

Anyway, I’m just being dense. The Republicans were going to attack basically any Obama nominee as a monster of judicial activism anyway, and so they used the unusual and thus salient appearance of the word “empathy” to get started. It’s stupid, but politics is stupid.


46 thoughts on “What's Wrong With Empathy?

  1. Recent case seems to be relevant. Only Ginsberg seemed to think (as a women) that the strip search of a girl could be traumatic. The others (all male) seemed to think stripping naked was a game. For them it may have been. But without more women on the court there will not be a balance.

  2. While I share your sympathies I'm not sure why race or sex should be the best criteria for the supposed benefits of diversity. why doesn't age or tastes in music define what we need? I am more in favour of dropping the entire act of politically nominating supreme court justices in favour of a national exam of some sort.

  3. What about strip search of a male? Would Ginsberg seem to think a male stripping naked is a game, or are women capable of being empathetic to both sexes, whereas men can't? While I agree there is nothing wrong with empathy, this can get a little silly when individuals aren't given the primary positionof importance.

  4. I might agree in the abstract — that the “judging” function is a human one, not a robotic one, that ultimately requires a certain cooperation with right-brain intuitiveness. Thus, getting a good mix of “right brains” is a good thing. But this isn't what Obama is talking about. He isn't suggesting that we simply ensure a balance of pre-cognitive dispositions on the Court. He says that “the rules may need to be different for some people.” (See http://notesfrombabel.blogspot.com/2009/05/obamhttp://www.victorhanson.com/articles/lugo110408….) I'm not sure where to draw the line between the kind of empathy you're talking about, and the kind Obama is talking about, but seems hard to deny it's there.

  5. I caught a link through the XX Factor blog (which I followed from here, actually) and the dialogue between the male judges was preeeetty ridiculous.I mean, really, Breyer? Really? “Stick things” in your underwear? Boys are weird!

  6. I love this blog, but this has to be up there with the worst you have ever posted. I admire your thoughtful analysis, but there seems to be an enormous disconnect between your concept of vague philosophical “justice” and the actual workings and purpose of our federal judiciary as intended by the Framers.Like you, I don't agree with the “judicial activism” code words to denounce a judicial style or philosophy. Unlike you, however, I can certainly define what is wrong with “empathy” in the judicial arena. For instance, I think judicial so-called “activism” is perfectly acceptable in broadening the scope of the privileges and immunities clause, or in applying substantive due process to economic liberties. “Empathy” or “heightened sensitivity,” on the other hand – is not only wrong as an interpretive exercise, it undermines entire basis of our legal system (at least, as it was intended). Indeed, “putting oneself in the position of the parties” is most certainly NOT relevant to the determination of specific cases. Justicia's blindfold is not just a cliche, it is the backbone of our legal system. Your post ignores this crucial point.Justices empathetic to certain gender issues, race issues, or even political issues may occasionally come up with a proper constitutional interpretation of a particular case, but this is a classic “broken clock” analogy. A “homogeneous composition” on the Court should matter to us no more than a “homogeneous composition” should matter in a firehouse, a group of umpires, or even in a collection of Cato policy wonks. Just as different umpires may have differing fundamental “strike zones,” Justices can approach their interpretation of the Constitution from different prisms. But no firefighter would change the direction of his hose based on his affinity for a particular style of architecture, and no umpire would (well…should) change his strike zone based on his knowledge of, or empathy for, a particular batter. The Court would only “improve” with the addition of more women and minorities if those specific women and minorities happened to be MORE impartial and LESS empathetic than other potential nominees. To suggest anything different argues for a very dangerous precedent. Empathy – as you describe it – should be solely in the province of “do-gooder” legislators, and to a lesser extent, juries. It should not be on the bench.

  7. Tyler – If we suppose that the male and/or white members of the Supreme Court are or could be impartial, then you might be correct that adding women and minorities to the Court would make the Court worse. But since the male and/or white members of the Supreme Court are not and cannot be impartial, adding women and minorities is – all things held equal – a way of correcting for one kind of partiality by adding another. If each member of the Court were simply making decisions on the basis of predetermined conscious/unconscious biases, then the best Court might, in principle, be populated by impartial people. But if you assume the capacity of the members of the Court to refine their judgments through deliberation with others of a different perspective, then diverse partiality might produce a superior Court by enriching the perspective of all (by bringing to light a broader range of considerations than a more homogeneous group would be aware of). I am of course making a whole range of empirical assumptions that can fairly be questioned. Still, the empirical research of which I am aware seems quite strongly to favor diversity in deliberative contexts as in, e.g., Lu Hong and Scott Page's “diversity trumps ability” theorem. I'm pretty sure that there is good research about this in the specific case of legal deliberation, but I am not familiar with the results.

  8. Mike, I never said – or even implied – that adding women or minorities would make the Court “worse.” I only argue that empathy, or diversity for diversity's sake, has no place in a system of blind justice. If a minority or a woman is a better, more well-reasoned, and more impartial justice than another candidate, then he or she should by all means be appointed over a more “homogenous” choice. But the Court is not a “deliberative body” in the sense that you – and Will – seem to think it is. Juries are deliberative bodies…Congress is a deliberative body…a Judge (or a panel of Judges) is just a referee. Although its true that they “deliberate” in some sense, it is not the sort of deliberation that would have anything added to it through the arbitrary diversity both you and Obama seem to recommend. The sole function and purpose of a judge is to apply the law (which is enacted by a deliberative body – congress) to a given set of facts -just as a referees job is to apply the rules of a game to its particular players and plays. A judge should not insert his or her empathetic views into this case-by-case analysis. This is the very purpose behind the equal protection clauses of the 5th and 14th amendments. As a previous commented correctly noted – analyzing potential nominees based on their potential race or gender is just as silly and misguided as analyzing nominees based on their musical tastes, what car they drive, or their middle names. Judges do not have to be impartial in their judicial philosophy…they have to be impartial in how they APPLY that philosophy to a given set of facts.(I'm still somewhat surprised that these points are even being debated on a libertarian blog.)

  9. yes – sorry – you certainly did not say or imply that adding women/minorities might make the court worse. i did not mean to say/imply that or claim that you were doing so (though i realize it came out that way). what i meant to say was that, on the assumption that the rest of the court is impartial, you might be right that adding women/minorities to the court *because* they are partial in some particular way might very well be a bad method of making appointments.i'm not sure i see the distinction that you are making between a deliberative body and a body of referees. the court deliberates and then referees. they exchange a complicated series of arguments, and then make decisions on the basis of those arguments. sometimes basketball referees stand on the sideline and deliberate about a difficult call for awhile. their call is often better because their diverse positioning around the court affords them a wider range of relevant perspectives. if we assume that being a member of some major, socially salient category (gender, race, class, etc.) affords one a perspective that is different in a way that bears on the likely interpretation of laws, then it seems like you would want to make sure that as many important perspectives as possible are fairly represented. this is particularly true if you reject the assumption – as i do – that some strong form of impartiality is normally an attainable ideal in the context of the supreme court, or that an adequate interpretation of law can be conducted independently of a much broader regard for one's social environment and history. but you may accept those two assumptions.

  10. “It’s stupid, but politics is stupid.”No, it's the Republicans who are stupid.What's more, I'd wager they lower the average I.Q. of all Americans by at least ten points.

  11. This post shows little understanding of the Supreme Court's role. Picking out which facts in the “situation” are and are not “salient” is the job of the trial judge, who listens to evidence and makes findings. The Supreme Court generally must accept the trial judge's findings as establishing the factual situation. Moreover, the Supreme Court's most frequent task is to interpret statutes passed by congress. For that job, I want a justice who's focused on what congress intended, not what the she personally feels the law should be. What is the point of Congress negotiating over the precise wording of a statute, if the Court is going to disregard those words and impose its own policy preferences? If Congress wants to pass a cold-hearted (but constitutional) law, the Court's job is to apply it to achieve its intended cold-hearted ends, not re-write it to conform to a judge's empathetic views. Really, competing versions of “empathy” legitimately come into play only in a few corners of constitutional law, such as the Amendments governing “unreasonable” seaches or “cruel and unsusal” punisment, or the right to privacy. For those questions, I say the most important brand of “empathy” is an openness to the concerns of all the players on both sides of the issue. A judge whose idea of empathy is “my race/gender/interest group should always win” is a bad judge. I also want a judge who will give due weight to broad consensus views, if they exist. Only after those two criteria are met, and only for a handful of the Court's cases, I could see some limited value in trying to achieve diversity of viewpoint on the Court. I don't think gender is a reliable predictor of the viewpoint a justice will bring to constitutional issues. Ginsberg (voting with one or more male justices) often disagreed with O'Connor. The best way to achieve diversity is based on career path: I want one justice who spent years defending criminals, one who prosecuted them, a plaintiff's lawyer, a corporate lawyer, and at least one who served in Congress or a high-level white house post. But if I can't have that, give me 9 people who all feel deeply that it's their job to interpret the law, not make it up.

  12. The point is that the men seemed to think that strip search of anyone was not a big deal. But Ginsberg thought strip search of anyone was important. That is the point.

  13. Do you mean just by being counted in the average, or because they cause others' IQ's to drop that much?I'm sure you'd lose your wager either way, but I was just curious about how far below average you were.

  14. I agree that “judicial activism” isn't a terribly useful term, not because it's meaningless, but because like “fascism” it's so, so often selectively applied.That said, it does seems to me that the left has enjoyed a pattern of judges trumping the letter of the law (statutory or constitutional) by making a bogus claim that a judgment call needs to be made, and following up with a leftist judgment call. The right certainly does this sometimes. Parts of the right circling around Bork even seem to be scheming to run the pattern in reverse. So far, though, the right doesn't seem to have succeeded to nearly the same extent as the leftThat doesn't mean the Right doesn't have its own history of using powerful offices to violate the letter of the law. If you want to feel more empathy about how libertarians (and various non-Bork-ish Republicans) react to such a pattern, try asking the leftist who influences you the most how he or she feels about Reagan's interpretation of arms control treaties, and of international law and statutory law limiting things like the Contras. And, similarly, about Bush's interpretation of laws, constitutions and treaties regarding torture, detentions, wiretapping, etc. (At Cornell, a philosophy graduate student earnestly scolded me for being so naive, in my complaints about New Deal jurisprudence, because documents cannot have absolute meaning. An unanswerable argument…until the next time we met, when he incautiously led with his chin by choosing to complain about how Star Wars clearly violated arms control treaties. It had clearly never occurred to him that outside the philosophy departmental echo chamber, it would be mighty hard to defend both positions simultaneously.)It really does seem to me that “empathy” here is primarily a recognizable code word for a pattern of leftist judges letting leftist priorities override the letter of the law. Thus, I find it creepy in about the same way that I would find it if some passionately Republican body empowered to appoint our next President started talking about selecting candidates based on seeming code for willfully ignoring clear statutory law, treaties, and the constitution: candidates with “vital executive courage” or some such thing.If Obama had 6 or 36 months ago praised Rose Bird for the empathy she had demonstrated on death penalty cases, it might have have been politically unwise, but would it have been politically unclear?Secondarily, “empathy” can mean the style of decisionmaking that has apparently given us modern used-to-be-contract tort law. As I understand it, a lot of contract law is traditionally judicial precedent anyway, so judges tweaking it seems a lot less scarily unsound than, say, reading new fine print (abortion rights! but no pot or homosexual or prostitution rights!) into a penumbra, or discovering that the New Deal was constitutional. But the result of the new precedents doesn't seem particularly good. In contracts in particular, unthinking populists and thinking tort lawyers do of course love their big jackpots. But thoughtful leftists should be disturbed by industries which have been severely screwed up, notably manufacture and development of vaccines. Tertiarily “empathy” can mean, as you say, empathy with one's own ethnic group and gender. Nothing could be wrong with that! In fact, as they say, what could possibly go wrong? Of course, it is lucky that this value was not discovered a year ago, or else it might have encouraged men or whites to rationalize voting against Clinton or Obama, which would have been wrong. But now that it has been discovered and happens to be convenient, the principle should of course be applied vigorously. We can worry about putting the genie back in the bottle at some time in the future, if it ever happens that some election draws nearer.

  15. I am more in favour of dropping the entire act of politically nominating supreme court justices in favour of a national exam of some sort.

    How the hell would that work?

  16. I really like your blog, but your post here is pretty weak in my view. Your first paragraph asserts, with no evidence whatsoever, that emphathy is short for more diversity on the court. The rest of the post goes off on justifying diversity. But I believe you are pretty clearly mistaken. Within constitutional law discourse, empathy is about departing from the letter of the law to promote substantive results that are thought to be justified by our concern for others. This is the language of Justice Brennan. Do you have any evidence to support your first paragraph claim?

  17. We need to keep Will honest, though he may be sleeping on the couch a few nights a week…

  18. We don't need empathy, we need people who will strive to interpret and judge the issue at hand according to the Constitution – no more, no less.Otherwise, why bother looking at the Constitution?

  19. Will, your comment goes wrong in the very first paragraph and then you proceed at 1000 miles an hour on the wrong track. Let me see if I can help.Here's the code: “Empathy” means that the weaker party is always right in every case before the Supreme Court, unless the Federal Government is being sued. It's class analysis. There are more of us little guys and the courts should favor us.This is one of the guiding lights of President Obama's administration.Obama won't stop until he's hacked the golden goose into a thousand bloody slivers.

  20. Will, your comments section is the cat's pajamas. Seems like you've managed to collect a fine cross-section of followers who put in the bookmark just before Article 3 and switched off the lamp for the night.

  21. “[E]mpathy” can mean, as you say, empathy with one's own ethnic group and gender. Nothing could be wrong with that! In fact, as they say, what could possibly go wrong? Of course, it is lucky that this value was not discovered a year ago, or else it might have encouraged men or whites to rationalize voting against Clinton or Obama….

    How so? I’m a white guy, and I certain believed that either Clinton or Obama would better promote my long-term self-interest than Bush or his endorsed successor would have. I don’t understand “empathy” to mean tribalism.

  22. This post seems either astonishingly naive or breathtakingly cynical. It reads like something written by an alien who has been given an English dictionary but has been denied any knowledge of what American political factions are like or how they use language. When John McCain was attacking self-interest and material prosperity and carrying on about “sacrifice,” “service,” and “a cause larger then yourself,” and so on, did you think he just meant that you should give a few bucks to the local soup kitchen?

  23. What 'empathy' gives to jurisprudence is unlimited subjectivity. If as a jurist I am empathetic to Buddhism's life suffering or Marx's eternal class struggle or Hitler's quest for purification of the Aryan race, then my decisions will track my empathy, NOT the intent of the Framers. Justice Kennedy's citation of foreign laws for American decisions is a case of empathy at work.If empathy is to be Mr. Obama's standard, then we'll get the feel-good, nice-nice, maximum good for the maximum number decisions we deserve. Note however, that “justice” becomes lost, not found, in the slop of empathy.

  24. Utter BS. Citation of foreign laws has noting to do with empathy and more to do with the practice of common law. What are the precedents, what are the principles in application, is the case relevant, etc. With regards to empathy, I'm with Will here. Empathy is about understanding the cases in such a way that the relevant facts are taken into account.

  25. That's exactly the opposite of how law ought to work. Governments ought to be governments of law, not of men. In cases where the lawmakers are still alive, we do not go back to them to ask to clarify disagreements as to the meaning, but we have the letter of the law stand on its own merit. The same is true in situations where the lawmakers are dead. Except in the most linguistic sense, we should not care one slightest bit what the founding fathers would have thought, but what the words mean. And many of these words are in fact rather complicated concepts, or which refer to entities external to the constitution which may change (such as what is “unusual”), and for many of these concepts there is similar language in other courts to which we may refer to their expertise. And, in cases where the language is simply hopelessly ambiguous, then it might be preferable to not interpret the law in a way which actively causes harm.

  26. Who needs logic, facts, and the law when you can have FEELINGS?That's exactly the attitude the Supreme Court needs. NOT.

  27. It is apparent that neither you nor Will have the slightest clue about how appellate courts actually operate in this country. The Supreme Court is an appellate body, not a district court where “relevant facts are taken into account.” And even if it were, the only possible source of empathy could properly come from the jury, not the judge. There is a reason juries are not part of the appellate process – an appeals court is not a “fact finder.” We are getting into basic first year con law/civ pro stuff here. I'm actually a bit disappointed that this softball was whiffed so badly on an otherwise fantastic and thought-provoking blog.

  28. Federalist No.10:”Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.”Our evidence has grown since then, enough to make Will's post “Uncontroversial” as a description of the universe.

  29. Tyler has it exactly right. Mike distorts the sports officiating analogy to make a weak argument for taking the blinds off of justice.Basketball refs stand on the sidelines and deliberate at times but not to suggest that the other judges agree to make the call for a player one of the refs identifies with, or to suggest a different set of rules. They deliberate because certain areas of play were blocked off from their view or because they were not looking at an area where something happened that could change the play. 'Empathy' has nothing to do with the calls (other than the NBA's empathy with star players that make its officiating some of the worst in professional sports, there may be a lesson there).Call them by the rules and the country survives, call them based on race or gender etc, and you pervert the constitution.

  30. Empathizer, What of the appellate court's role in determining the tests to be applied by lower courts? For instance, in 4th Amendment law courts are to look at the “totality of the circumstances,” in determining, say, whether a seizure of the person has occurred or whether a police encounter is “mere contact.” Appellate courts create broad guidelines for lower courts to follow, and often give examples of “circumstances” that are “relevant” for lower courts to consider when making their judgments on a motion to suppress (or whatever). Isn't it possible that a judge's experiences may help shape the kinds of “circumstances” that are “relevant” for that kind of analysis?

  31. I wasn't talking legalese, since I think the deeper, philosophical perspective is more illuminating. You'll have to believe me that I understand pretty well how the whole thing actually works. Some of my best friends (and former roomates) clerked in the various appeals courts. And I've played basketball in the Supreme Court gym, which is obviously qualifies me to speak on matters of the judiciary.

  32. Did you play any of the Justices? If so, did you win? And, if so, when you won, did you yell something ferociously at them in triumph?

  33. I was intrigued by this debate and decided to flex my “philosophy of law muscles” (from one undergrad class). The way I see it, the debate reminds me of the philosophy of law debate of whether judges legislate whenever they interpret the law. It reminds me of back-and-forth essays of Justice Scalia and Ronald Dworkin about Scalia's claimed “textualism” – interpreting the law from the context of the writers (take for example of whether the death penalty counted as “cruel and unusual” in 1700s or today). To me, Scalia's claim to be “true to the original” is just an elaborate justification for his conservative tendencies and Dworkin's push for a more flexible interpretation of the Constitution (e.g. the Fourteenth Amendment is legal grounds for banning segregation, though its writers probably didn't consider segregation in the 1800s), is an elaborate justification for more liberal policies. It seems to me this push and pull is necessary for some balance – on one hand we obviously don't live with the same mindset as people in the 18th century, but we do want the words in the law to have some sort of consistent meaning throughout history (“all animals are equal but some are more equal than others” as an extreme example). Call me a realist or whatever…

  34. About as well as the exam that Sotormayor struck down that the Conneticut firefighters took. When enough minorities did not pass the test, they threw it out so they could achieve their hiring quotas. We had to have a women and a Latino or Latina was a nice touch. Now if someone can just prove she is also a divorced lesbian we would have the tri-fecta of liberal picks.

  35. Nobody expects unbiased justice, there is no such a thing in reality, actually some people of law build careers based on empathy in judicial system. There is nothing wrong with empathy as long as the judgment remains clear and as objective as possible. Darry, Motion to File Document Under Seal

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