Today's topic: President Obama has come under fire for his "empathy" standard in selecting a Supreme Court nominee. Is there a conflict between considering the real-world implications of Supreme Court decisions and staying true to the intent of the Constitution and federal law?

How empathy can distort judges' thinking and lead to bad decisions
Point: Ilya Somin

Empathy is valuable for many purposes, but it is usually a poor tool for judicial decision-making. Judges should apply the law as written, whether or not they empathize with any of the litigants. This is especially important when we consider the fact that people are most likely to empathize with those who are similar to themselves in race, class, ethnicity, religion and political ideology. In a judiciary still predominantly filled with relatively affluent white males, liberals should carefully consider whether they really want to legitimize empathy as a basis for judicial rulings.

President Obama says he wants judges who have the "empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old." But if judges who feel empathy for these groups can legitimately base decisions on it, the same goes for the considerably larger number of jurists who most easily empathize with what it's like to be rich, or white, or straight, or able-bodied. If we weaken the norm of judicial impartiality in favor of greater emphasis on empathy, minorities and the poor are unlikely to benefit.

Some argue that judicial impartiality is a pipe dream. Indeed, empathy can never be completely eliminated as a factor in judging. But we should strive to reduce its role rather than increase it.

This not a hopelessly utopian objective. A century ago, judges and others often discriminated against Irish American and Italian American litigants. Today, such prejudice has been largely eliminated from our society and rarely affects judicial decisions. Similarly, the average white jurist today is much less likely to discriminate against African American litigants than her counterparts 40 years ago, even though racism is far from completely eliminated. Numerous judges have issued 1st Amendment rulings protecting communist, fascist and radical Islamist speech against censorship even though those judges probably have little or no empathy for advocates of these and other unpopular ideologies. That is a major improvement over the first half of the 20th century, when judges often upheld the suppression of politically unpopular speakers.

To say that judges shouldn't base decisions on empathy is not to say they should ignore all "real-world implications" of their decisions. Many cases require judges to make empirical judgments. For example, it is often impossible to tell whether a police search is "reasonable" under the 4th Amendment without considering the nature of the suspected crime, the harm the search causes to potentially innocent targets and so on. However, judges should make such determinations by systematically considering the relevant evidence, not on the basis of any empathy they might feel for the litigants.

Reliance on empathy often actually impedes accurate evaluation of the consequences of judicial decisions. Empathy usually leads us to focus on a clearly visible, sympathetic person who has suffered some sort of readily apparent harm. But it is often difficult or impossible to feel empathy for people we never see who may be victimized by the indirect or unintended consequences of a decision. To take an example from my own field of property law, judges can easily empathize with upper middle class people who use restrictive zoning rules to maintain the attractive "character" of their communities. It is much harder to see how these laws often zone out the poor and create housing shortages. The people barred from a community by exclusionary zoning are generally invisible to judges and impossible for them to identify, much less empathize with. To paraphrase a classic essay by 19th century economist Frederic Bastiat, relying on empathy leads us to focus on the visible effects of a legal rule while neglecting its often more important "unseen" consequences. Court decisions upholding the constitutionality of exclusionary zoning may have been influenced by such empathy-driven blindness, which might have led judges to ignore its broader regional implications.

Obama also argues that judges should sometimes use empathy to resolve "hard cases" in which the law is ambiguous. In my view, judges will usually produce better results if they decide such cases based on their best considered judgment of the meaning of the law in question. The fact that the outcome of a case is close is no reason to rely on empathy. Rather, such cases call for more rigorous consideration of the text and original meaning of the law and for careful systematic analysis of relevant empirical issues. Judges who do these things will still make mistakes in hard cases. That's part of what makes them hard in the first place. But using empathy is unlikely to improve the quality of hard cases. It may well decrease it by creating scope for pernicious biases and blindness to the "unseen" effects of a decision.

Overall, judges can best produce beneficial consequences by enforcing legal rules impartially and avoiding reliance on empathy as much as possible.

Ilya Somin, an assistant professor at George Mason University School of Law, blogs at the Volokh Conspiracy.


Judging demands empathy, even from conservatives
Counterpoint: Erwin Chemerinsky

Judging, especially at the level of the Supreme Court, is not and never has been a mechanical process of applying clear rules to yield determinate answers. It is a human activity in which there is often great discretion. How that discretion is exercised is very much a function of who is on the bench and the views, values and life experiences of the justices. In exercising this discretion, justices should be mindful of the consequences of their decisions on people's lives. That is what empathy is about, and it is hard to imagine wanting judges who lack empathy.

To a large extent, professor, you are attacking straw people. You say that judges should not "base" their decisions on their race or gender. Of course, that's correct. No one suggests otherwise; no one is arguing for decisions based on race or gender. But that does not make race or gender irrelevant in judging, because a person's race or gender influences how facts and issues are perceived; this is why diversity on the bench is crucial.

You repeatedly say that judges should be impartial; of course, we agree on this. But no one ever has suggested that judges lack impartiality because they bring views to the bench. Conservative justices such as John Roberts, Clarence Thomas and Antonin Scalia don't lack impartiality because their conservative values cause them to consistently rule in a conservative direction. Nor do they lack impartiality because their positions emerge from their life experiences; that is true of every justice and judge.

You also say that justices should decide cases based on "objective" legal rules. Rarely is there a clear right or wrong answer to issues before the Supreme Court. The Constitution is filled with broad language, such as "cruel and unusual punishment," "due process of law" and "equal protection of the law."

How justices interpret these words is a function of their values and not any objective methodology. For example, last year, the Supreme Court considered the question of whether the 2nd Amendment protects a right of individuals to have weapons apart from the purpose of militia service. The court split 5 to 4, with the five conservative justices taking the gun-rights position, invalidating a District of Columbia law. The two sides disagreed over the meaning of the text of the 2nd Amendment, the original understanding and the impact of subsequent decisions. Surely it was no coincidence that the votes of the justices exactly followed the reality of our society, that conservatives tend to favor gun rights and liberals tend to favor gun control.

Constitutional cases often require justices to balance competing interests. In doing so, justices' values and life experiences matter enormously. This is also where empathy plays a role. For instance, in a case now before the Supreme Court concerning the strip search of a seventh-grade girl, the issue is how to balance the government's interest in keeping drugs out of schools against a student's privacy. There is no "objective" way to answer this question. In their balancing, I certainly want the justices to feel empathy for the student and what it felt like for her to be stripped to her underwear.

You say, professor, that empathy can distort decisions. That is indeed correct, but it is not an argument against empathy but rather for empathy to be a part of carefully reasoned decisions. In fact, all justices as human beings inevitably feel empathy. Most of today's Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants. Obama's wish that justices feel empathy for minorities and the poor should hardly be controversial, for the Constitution above all exists to protect minorities. The majority generally doesn't need a constitution for its protection because it can control the political process.

You also say that justices may find it hard to have empathy for those different from their own experiences, providing exclusionary zoning as an example. This too is true, but it is exactly why the Supreme Court should have justices with many different life experiences and why having someone with Sonia Sotomayor's background is important. Also, it is why justices must be encouraged to be sensitive and even empathetic to those who have experiences different from their own.

It is too easy in a discussion like this to rely on caricatures of what judging is about. I believe you rely on such a caricature when you tout judging based on "objective" rules and decry decisions based on race, gender or empathy. The implication here is that conservatives are impartial while liberals want decisions based on their preferences and sympathies. This is silly. All justices base decisions in many cases on their values, life experiences and empathy. What separates a Scalia from a Ginsburg are these differences, not any superiority in being impartial or objective.

Sotomayor can speak authoritatively to her colleagues from nearly 55 years of life experience as a Latina, a person who has suffered diabetes since childhood and someone who grew up in a housing project. There may be cases in which these experiences will matter in her understanding and will help her influence her colleagues. That is exactly as it should be.

Erwin Chemerinsky is dean of the UC Irvine School of Law.