Is empathy a desirable quality in a Supreme Court justice?
President Obama has said he’s searching for it in his nominee to replace retiring Justice David H. Souter, but as a qualification for a jurist, it gives conservatives the willies and can produce mixed results in our legal system. We expect judges to resist empathy and instead impose the law evenhandedly. We are appropriately outraged when a judge goes easy on a defendant with whom he identifies -- the suburban white kid, say, who gets community service whereas his urban black counterpart goes off to jail.
If empathy can handicap judges, however, it can elevate and enlarge justices. Unlike trial court or even appellate judges, Supreme Court justices are free to regard precedent as subject to challenge, and they act not merely to apply existing judicial norms but rather to question and sometimes overturn them. Doing that well may require experience outside the judicial system and identification with those caught up in it.
In recent history, one court is particularly remembered -- by critics and admirers -- for its empathy and its consciousness of its outsized place in society as a whole. From 1953 to 1969, the court led by Chief Justice Earl Warren drew upon the varied backgrounds of its justices and the singular character of its chief to craft a remarkable body of work. From race relations to voting rights, from privacy to school prayer, no Supreme Court in U.S. history has done more to draft the contours of society as we experience it today.
Warren himself has to be regarded as a judge who drew upon his life as well as the law in his decision making. A native of Los Angeles who grew up in a modest Bakersfield home, he instinctively sympathized with working people and was forever suspicious of big business, a relic of early summers working for the Southern Pacific.
He started his career as a prosecutor, and that experience guided much of his reasoning on the duties of law enforcement. Partly as a consequence, the Warren court set high standards for those responsible for arresting, charging and trying defendants.
He also won seven elections. After successful campaigns for Alameda County district attorney and California attorney general, he served three terms as California’s governor. It’s no surprise that such a successful politician had enormous confidence in voters. Following his lead, the Warren court eliminated poll taxes and voter literacy tests and imposed requirements of equal representation on state legislative elections, effectively equalizing the voting power of urban blacks and rural whites.
Warren was a stepfather and father, devoted to his six children, and his parental instincts were memorably expressed as he labored over his most important opinion, Brown vs. Board of Education. “To separate [Negro children] from others of their age solely because of their color puts a mark of inferiority not only on their status in the community but upon their little hearts and minds,” Warren wrote in an early draft of that opinion. “Little hearts and minds” leaves no question about whom Warren identified with in that ruling.
Less remembered is Warren’s long struggle to find a constitutional basis for restricting pornography. Warren was raised in Progressive-era California and absorbed that movement’s intolerance for vice. Pornography thus offended his politics and, more viscerally, his sense of parental propriety. Anyone who showed a dirty magazine to one of his girls, Warren often muttered, would get a punch in the mouth. Warren’s empathy for the unwilling recipients of smut was a distraction, as he labored to find a way to punish pornographers but could not fashion a constitutional rule that upheld the 1st Amendment and also squared it with what he regarded as offensive material. The Warren court drifted without much success in the area of pornography.
What is perhaps least well known about Warren’s background and its influence on his work as a justice was his deep, personal identification with the victims of violence. Few criticisms gave him greater offense than that the Warren court was “soft on crime,” a charge that Richard M. Nixon, Warren’s nemesis, lobbed at the court in his 1968 campaign for the presidency. It is no wonder that Warren was angered by the accusation: His father had been murdered, beaten to death with an iron pipe in the family home in Bakersfield in May 1938, while Earl was in the midst of his campaign for attorney general. The assailant was never found.
To some, Warren court rulings such as Gideon vs. Wainwright (right to counsel in state trials), Mapp vs. Ohio (exclusion of illegally seized evidence from state trials), Douglas vs. California (right to counsel on appeal), Escobedo vs. Illinois (exclusion of confessions taken after a suspect asked for a lawyer and was refused access to one) and Miranda vs. Arizona (right of suspects to be informed of their rights) suggested too much empathy with criminals at the expense of police and prosecutors. Warren never did see those cases that way. To him, they were natural expectations of professionalism that he was confident police and prosecutors could meet without endangering their power to convict the guilty. His work in criminal justice reflected two strains of his experience that he never regarded as contradictory -- the belief in high standards for law enforcement and the pain of having a loved one killed.
Empathy is not all that is required of great justices. Warren was a careful writer, a skilled leader and a serious, thoughtful, moderate man -- all of which helped him unite his court. He was a veteran, a darling of California’s Republican elite, a grand master of the Masons and a member of the Bohemian Club. But his empathy did help shape his judicial record, and in the 16 years that he served as chief justice, the record he compiled consisted of this: Schools and other institutions were desegregated; poor defendants were given access to lawyers; states were ordered to discard voting systems and rules that intentionally disenfranchised blacks; police were reminded that the Constitution requires warrants before they may enter and ransack a home; schools were ordered to stop reading government-approved prayers to children; states were forbidden from denying married couples the right to purchase contraceptives.
Empathy for victims, defendants and others encouraged those rulings; the law and the nation were the beneficiaries. As Obama searches for a justice, Warren’s model of empathy offers sound guidance.