How can you ignore empathy in judicial decision making?

Saturday, May 2nd, 2009
By: Jonathan MontagJ.D.

President Obama commented yesterday on qualities he will look for in a Supreme Court justice to replace the retiring Justice David Souter. The President said, “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”  Senator Orrin Hatch commented that empathy is not the law. Presumably, to him, empathy is not a relevant factor in interpreting the law.

The public and the media that reports  on it generally misunderstand what appellate judges, which Supreme Court justices are, do for a living.  You may read a news story that explains that the Supreme Court decided that the government may confiscate private property to give to another private person to develop the property. One gets the impression that the Supreme Court justices came to work one day and agreed amongst themselves to change property law. In fact, what is happening is that the Supreme Court is asked to interpret a law – a statute passed by Congress or by a state legislature (and signed by the president and state governor) or a regulation promulgated by an agency to implement the law. Sometimes the statute or regulation is ambiguous, sometimes it is in contradiction to another statute or regulation, and sometimes it is in contradiction to another right or rights in the Constitution. Sometimes the statute is fine but the regulation exceeds the scope of the statute. The Supreme Court, like the appellate courts, has to decide how the law or regulation  applies to a novel situation, how the law or regulation functions in light of another contradictory law or regulation, or whether the law or regulation is contrary to the Constitution, the supreme law of the land. While the media would have us believe most cases the Supreme Court decides hinge on great Constitutional issues, most decisions involve studying obscure statutes and figuring out how they interplay.  Understanding this may help explain why Justice Souter once commented, ““When the term of court starts I undergo a sort of annual intellectual lobotomy and it lasts until the following summer when I sort of cram what I can into the summertime.” His job did not usually involve sitting around pondering great Constitutional theories and writing decisions with the force of law in conformity with them, but mulling over the meanings and applications of obscure statutes and regulations in a broad range of areas in areas as fascinating as, say, bankruptcy law and patent law.

As examples, a state passes a law that says in the school there will be zero tolerance for drugs. A regulation requires mandatory suspension. A child brings a St. Joseph’s Aspirin for Children to school and is suspended. Or, a state law passes a law saying there will be zero tolerance for weapons. A child brings a plastic knife, the dull kind, to eat an orange with and is suspended. A court may be asked to determine whether these transactions violated the law, which was not specific about aspirin of dull plastic knives – the role of interpreting ambiguous statutes. The court may be asked to determine whether the law contradicts other statutes mandating that children be allowed to go to school – the role of harmonizing contradictory statutes and regulations. The court may be asked to determine if the law is absurd or violates children’s rights to fair treatment – the role of harmonizing a statute with Constitutional rights. The court reaches a decision, the decision is appealed either by the school or the student to an appellate court, and another and another and eventually the case may reach the Supreme Court – if the Supreme Court decides to hear it. Then the Supreme Court decides what the law means, and how it interplays with other laws and the Constitution. When a decision is reached and the media reports, “Supreme Court bans St. Joseph’s in Schools,” or “Supreme Court allows St. Joseph’s in schools,” this is not exactly what has happened.

The question is how do the courts make these decisions. How do they decide whether zero tolerance for drugs and weapons includes children’s aspirin and plastic knives and whether mandatory suspension conforms with other laws and rights? The judges consider the plain meaning of the words, interpretations in other cases (precedents), what the lawmakers said when debating the law (Congressional history), what scholars have written on the subject, analogies to other situations, sometimes (and somewhat controversially) to what other countries say about the matter, and other tools. All of these inputs are processed by the judge and he makes his decision. His or own values, preferences, and weighing scales play an important role or else there would never be dissents and computers could do this work.

Illustrative is an issue I have written about before, the ability of an alien who entered under the visa waiver program to adjust his or her status to permanent resident status.  There is one statute that says such an alien has a right to pursue adjustment of status. There is another statute that says such an alien has no such right. How do you harmonize the two? One decision in the Ninth Circuit Court of Appeals says the proper harmonization is that the alien can apply to adjust status and receive a decision before he can be deported. Another decision says the alien has no right to apply and can be deported after he applies without a decision being made on the application.  The latter court was unmoved by the fact that this could separate a husband and wife for ten years, depriving them and their children of a normal life. It seems to me that an important factor in choosing between the two statutes and two incredibly different outcomes is employing the “quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” How could Orrin Hatch think otherwise?


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