Wednesday, May 27, 2009

Conservative Judicial Empathy? You Betcha!

Obama's statement that he would like a Supreme Court justice who is both intelligent and who shows "empathy" has created quite a swirl of activity. If I were president, I am fairly certain I would not have used the word "empathy" to describe a trait of potential nominees because it is both amorphous and subject to great political distortion and abuse. Nevertheless, for reasons that will soon become apparent, much of the conservative melodrama over the term demonstrates a tremendous measure of ignorance regarding the details of Supreme Court rulings or simple hypocrisy.

Conservative Judicial Empathy
Obama has elaborated the idea of empathy, stating that he believes a Supreme Court justice should understand "how our laws affect the daily realities of people's lives" and should identify "with people's hopes and struggles."

Using Obama's own words, I have compiled a listing of examples where Justices Scalia and Kennedy have expressed empathy in their judicial opinions. If conservatives believe that empathy is a bankrupt concept, then they should reject its use by rightwing and right-leaning justices.

Justice Scalia
In Johnson v. Transportation Agency of Santa Clara County, the Supreme Court rejected the claim of Paul Johnson, a white male employee who alleged that his employer unlawfully promoted a woman over him by taking sex into account pursuant to an affirmative action plan. Scalia's vigorous dissent argues that advocates of race and gender equality are politically powerful and that the Court's ruling would encourage employers to hire "unqualified" women and persons of color in order to avoid costly litigation.

Exhibiting a great deal of empathy, Scalia concludes that poor white males are the true victims of discrimination and in need of judicial protection:
[T]he only losers in the process are the Johnsons of the country, for whom [the antidiscrimination statute] has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.
Scalia satisfies Obama's empathy standard because he uses Johnson's experience to discuss "how our laws affect the daily realities of people's lives" and to "identify with people's hopes and struggles."

In United States v. Virginia, the Supreme Court invalidated the Virginia Military Institute's policy of excluding women. Scalia's lone dissent expresses empathy with citizens of the state and with male students:
Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.
Scalia portrays VMI as the victim of modern social movements that seek to dismantle traditional notions of gender. For example, he quotes at length from a book entitled "The Code of a Gentleman" that VMI required all first-year cadets to possess. The book lists traditional concepts of manhood, which Scalia believes, regrettably, that the Court's ruling will destroy:
A gentleman . . . [d]oes not speak more than casually about his girl friend. Does not go to a lady's house if he is affected by alcohol. . . Does not hail a lady from a club window. . . [N]ever discusses the merits or demerits of a lady. . . Does not slap strangers on the back nor so much as lay a finger on a lady. . . .

I do not know whether the men of VMI lived by this code . . . But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
If Obama's search for empathetic justices appalls conservatives, then Scalia's emotional discussion of male valor should anger them as well.

Justice Kennedy
Justice Kennedy is a right-leaning moderate. In 2007 he authored the Court's ruling in Gonzales v. Carhart which upheld the federal prohibition of "partial-birth abortion." A particular passage of Kennedy's ruling empathizes with women whom Kennedy believes would later regret having the procedure:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . .Severe depression and loss of esteem can follow. . . .

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
As a male, Kennedy cannot draw upon any personal experience as a person who has terminated a pregnancy. Accordingly, he can only empathize with women's feelings as stated in Court submissions, although he concedes the absence of "reliable data" on this issue. Based on his empathy and concern for this particular class of women, notwithstanding the lack of clear evidence, Kennedy argues that Congress can ban the procedure for all women -- even though the Court had invalidated a similar state law in 2000.

Finally, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court invalidated policies designed to maintain racial integration public schools. Although Kennedy joined the four conservatives to create a majority ruling invalidating the policies, he wrote separately to disagree with the conservatives' assertion that states did not have a "compelling interest" in preventing racial segregation in schools. Kennedy, however, prefers more subtle policies to achieve this goal. Kennedy explains that explicit, rather than covert, race policies harm individual "dignity":
To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.
Like Scalia, Kennedy fulfills Obama's "empathy" test because he expresses his own understanding of how race-based legislation "affects the daily realities of people's lives." If conservatives believe that Obama's empathy standard is illegitimate, then they should condemn Kennedy for modeling it in his opinions.

The preceding analysis discusses just a few of the many instances of conservative judicial empathy. Conservatives judges have "empathized" with white male discrimination plaintiffs whom they view as victims of feminism and civil rights. They have empathized with hypothetical women whom they feel are so distraught over their choice to have partial-birth abortions that their anxiety justifies a complete ban of the procedure. They have also empathized with whites subject to diversity and integration policies in the educational setting on the grounds that the conscious use of race offends their dignity. If conservatives truly believe that empathy has no role in judging, then they should reject displays of empathy among conservative justices. Do not hold your breath.

Update: More on Conservative "Empathy"
Talking Points Memo via Media Matters has a great report on President Bush and empathy. Apparently, when he introduced nominee Clarence Thomas, he marketed him as a "man of great empathy."


Anonymous said...

I don't think empathy must be absent from the process, but it can't be the central focus of it, either, and that's how it's being presented today by Obama.

Those opinions record exactly how it is that those judges empathized, and that gives us a standard. What's worrisome is the empathy that goes unrecorded... and unsupported within the law.

Robert Tsai said...


Good post. I might add that empathy on the part of judicial conservatives extends to members of the religious majority, who are apparently victimized by legal decisions and overly zealous public officials. In several USSC opinions, and at the same time the Supreme Court is becoming less interested in remedying structural racial inequity, Justices express, in a rising tide of empathy, that treating religious believers differently expresses "hostility toward religion," denies them equal "dignity," and forces them to "suffer" viewpoint discrimination (treated the same as traditional discrimination). In Chapter Four of "Eloquence and Reason," I trace such language to Ronald Reagan and out-of-court mobilization and lawyering, all of which eventually becomes embraced by the Supreme Court.

Darren Lenard Hutchinson said...

Anonymous: If you look at Obama's WhiteHouse.Gov statement, he did not make "empathy" the central issue. It was a facto on a list of things to consider. The media and conservatives have made it the central issue. Also, I am quoting explicit references. Judges, including these two, are not always this explicit.

Robert: Thanks. There are so many examples! Great addition to the conservation.

Anonymous said...

If it's not "central" to Obama's search, then why did he call it out so clearly? I think the answer is that he's looking for something "other" here, but he's not saying what that other is. He's not being explicit.

Judges should be explicit. That's the whole point of their work. The case in front of them is important, but also important is the rest of us, who will be making use of that opinion. The view that undefined "empathy" in a particular case is acceptable seems to rival that importance, and thus makes it less important.

Judges will be empathetic, we know that. But as long as they tell us how their empathy played out in their opinion, explicitly, it's legitimate and we can make use of it. Obama's evasiveness on this doesn't bode well for that process.

Mark G said...

Bit of a straw man, professor. No one is seriously suggesting empathy is a bad thing per se. What many righties are suggesting is that lefties are prone to decide cases based on their policy preferences rather than applicable statutory and constitutional language, and use the word "empathy" to make their disregard of inconvenient texts seem noble. The whole point of the liberal idea of the "living constitution" is that the content of constitutional law is sometimes supplied by reference to current societal norms, which a majority of the Court conveniently deems itself the best suited to discern.

Kim Leighton said...

Great post Darren.

Interesting to note the co-presence in Conservative empathy of both feeling for the other and recognizing the other's feelings through a generalized voice or, as we say in philosphy, a "voice from nowhere."

Scalia assumes the position of the collective 'we', imagining all would agree with him: "I do not think that any of us...will be better off," while Kennedy's reasoning jumps from the specific to the universal citing that a woman's puported suffering upon have an abortion is "self-evident."

In other words, in neither of these judges' opinions does the empathetic performance seem to position the speaker as an individual with particular preferences, emotions, or, God forbid, biases. That the justices are, in many of the cases you and others cite, defending other white males is, from such a position, irrelevant and mere coincidence: the subjects judging are the We of Universal Reason...

So, one trouble with getting the Conservatives to come out of their empathy closets is to get them to recognize that they too have experiences, histories, and points of view from which they offer judgments. Perhaps if we could get their Emperor's clothes off, we could all see what real bodies lie beneath.

Darren Lenard Hutchinson said...

Kim - thanks! Excellent comments. I was thinking about this some more -- and I do see this issue and the issue of Sotomayor's discussion of sex/race as a moment of closeted identity. If your experiences represent the norm (or so you believe) then you are less likely to view your reasoning as the product of your experiences. Instead, it is "neutral." But, clearly, this not true.

Darren Lenard Hutchinson said...

Mark said: "Bit of a straw man, professor. No one is seriously suggesting empathy is a bad thing per se. What many righties are suggesting is that lefties are prone to decide cases based on their policy preferences rather than applicable statutory and constitutional language, and use the word "empathy" to make their disregard of inconvenient texts seem noble. The whole point of the liberal idea of the "living constitution" is that the content of constitutional law is sometimes supplied by reference to current societal norms, which a majority of the Court conveniently deems itself the best suited to discern."

I disagree that this is a "straw man" argument. Instead, the straw argument is that liberal justices do not base their decisions on the constitution and statutes. All judges do this. What people refuse to admit in these debates is the ambiguity of the constitution and the discretion that judges have to rule particular ways. Because of this, conservatives spew endlessly - and deceitfully - about liberal judges supplanting "the" law (as if there is only one version sitting somewhere awaiting discovery). But when conservative justices pick among options, this is always "neutral." I cannot see you accepting that script.

As for the "living constitution" argument - conservatives do the exact same thing, but they do not admit it. Consider the ruling in Plessy v Ferguson. The Court held that the Equal Protection Clause only secured "political" and "civil" equality, but not racial equality.

Although the Framers did not speak with one voice on the issue, clearly all of the Framers did not agree that the 14th Amendment was intended to get rid of all racial discrimination. Also, textually, the Equal Protection Clause only applies to "states" not to Congress.

Nevertheless, conservatives have written their own views into the meaning of the text and view it as almost an absolute prohibition on affirmative action -- whether mandated by states or Congress. And they read the constitution as only prohibiting intentional discrimination.

Nothing in the text or history of the document compels this result. Instead, this is a reflection of their own biases. I find it appalling that conservatives or liberals believe that the Constitution compels a SINGLE result in these complex cases. It's simply, A LIE.

Darren Lenard Hutchinson said...

Anonymous: Did you click the link to White House.Gov? It does not sound as if you did.

Also, judges are not required to write opinions. So to draw a sinister inference from their failure to write an opinion in a certain way is a bit far fetched. You also seem to assume that conservatives always state their personal empathies, but that is absolutely wrong.

Mark G said...

Professor -- Re "conservatives do it too"

So, your point is that it is equally fine for judges on either side to focus their "empathy" on their preferred subjects? Or that liberals' application of their ideological assumptions is somehow less objectionable than conservatives?

Take the Ledbetter case, often cited on the left as illustrating the need for more "empathy." The Plaintiff lost, first and formost, becuase the law passed by Congress set a statute of limitations for filing suit, and did not make an exception applicable to the Plaintiff. The judges who ruled against the Plaintiff were not resorting to their own preferences to answer a question as to which the statute is silent; they were applying the statute of limitations set by Congress.

Really, I don't think it's fair to hold Plessy v. Ferguson against contemporary conservatives.

I don't know my XIV Amendment stuff well enough to talk much about that. If Scalia & Co are twisting the text and prior case law get the result they want in XIV cases, I'm against that, too.

Mark G said...

Professor --Regarding the inferences to be drawn from the one paragraph opinion in Ricci -- why don't you ask some of your buddies there who have been federal appellate clerks? $5 says that, off the record, they all tell you that was an unsusal disposition for a case of sufficient interest to merit Supreme Court review.

Darren Lenard Hutchinson said...

Mark G: You are forgetting your "equity" doctrines. Equity has created many rules to redush the harshness of the effects of litigation. One rule deals with the statutute of limitation. If there is a "continuing harm and continuing violation" the clock restarts with every new violation. This rule applies in so many settings outside of Title VII, and the rule is not stated in the statute. It's a basic rule that courts across the country apply, and conservatives use it too. So that case is a complete nonstarter for me.

Second, I have not judged Plessy by contemporary standards. I never did,. What I said is that Plessy is probably a closer reflection on the "original" understanding of the EPC than what contemporary conservatives appply. What explains the difference: the individual biases of contemporary conservatives.

Finally, as for the obsession with Ricci, whther or not a full pinion should have been written does not bother me. As I said earlier, judges are not even required to write opinions, and they have become longer and longer over time. I would have loved an opinion. I do not draw any negative inferences because one does not exist. The Supreme Court takes review on a number of issues that might not have a drawn out ruling.

Stray Yellar Dawg? said...

The appointment of Sonia Sotomayor may be the only point on which I will back, and agree with President Obama. Better make a note of it!

I agree that the perspective and empathy she will bring to our highest court will prove invaluable.

(And I also pity her Republican foes for the fools they will make of themselves in front of a voting block that they cannot afford to alienate.)

Go Sonia! You are the American Dream come true for women and for racial minorities!!

SFS said...

Great post. I haven't seen this comparison based on empathy anywhere else.

Chris said...

@Stray Yellar Dawg? - The voting block you speak of didn't seem to hold it against Democrats when they viewed the nomination of Miguel Estrada "especially dangerous" because, in part, "he is Latino."

Page W.H. Brousseau IV said...

I agree having someone who has empathy is something all sides do promote. It is another, and this is the new line of judicial reasoning, that cases should be decided on empathy, not law, or even interpretation of it.

Just my 2 cents.

Darren Lenard Hutchinson said...

Hi, Page WH Brousseau. Could you please provide a link to a direct quote from Obama which says that "cases should be decided on empathy, not law, ore even intepretation of it" (or something close to this). Thanks.

PS: I do not really believe you can provide this.

Darren Lenard Hutchinson said...

Page: I really should have asked you to provide something in Sotomayor's background which demonstrates that she decides cases without interpreting the law. As you know, appeals cases are 3-judge panels. Unless the entire Second Circuit follows the practice you laid out in your post, then it cannot reasonably describe how Sotomayor decides cases. Also, she has issued rulings where she says in the opinion that she feels sorry for the party, but that the law requires a particular outcome. One case involved the sentencing guidelines. She wanted to give a shorter sentence to a first-time offender who cooperated with the government, but she could not. There are so many distortions concerning Sotomayor; it's very unfortunate.

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