Wednesday, 20 May 2009

Empathy and the Court

In reflecting upon his forthcoming choice of a Supreme Court justice to replace the retiring Justice David Souter, President Obama recently described how he would approach what he called the "among my most serious responsibilities as President."

"I will seek somebody with a sharp and independent mind, and a record of excellence and integrity," he said. "I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
Reflecting several centuries worth of considered legal philosophy, Republican National Committee Chair responded to this with a considered restatement of that Party's core judicial argument:

"I don't need some justice up there feeling bad for my opponent and short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I'll give you empathy. Empathise right on your behind. Crazy!"
Now, I realise that Steele's position may contain more legal jargon and philosophical concepts than are easily understood by the lay reader, so let me make and effort to clarify his meaning for you.

Steele's argument essentially boils down to this: The law exists in a clear and knowable form, and the job of a justice is merely to apply this law to the individual case that comes before her (or him). It would not be desirable for a justice to experience empathy or understanding of the litigants appearing before him, as this would prevent them from applying the law in an impartial manner.

This is not a ridiculous argument. It's just incorrect.

In fact, what Steele is talking about here is a pretty good description of the work of judges in the lower courts - in most cases that come before a lower court judge, or even an appeals court judge, all that's required is to look at the facts, look at the law (including precendent) and determine how the one is applied to the other.

However, in some appeals court cases and in most cases before the Supreme Court, this simply isn't the job description. The function of the Supreme Court is to handle cases of interpretation - instances where it is not clear how the law can best be applied. More often than not, at the Supreme Court level you have to make choices about RELATIVE applications of the law - deciding priorities. For instance, does that State's right to ensure a safe and orderly environment supersede the individual's right to protest to such an extent that it is reasonable to impose limits on speech?

Does a property owner's right to freedom in their own possesions take precedence over the state's interest in regulating construction on that property?

When one parent wants a terminally ill child to be put on a do not recusitate order, and the other parent strongly opposes this - how to you break that deadlock?

When a small business owner wants to do drug testing on his or her staff, does that owner's concern for the health and safety of his customers and employees take precedence over the employees right to avoid unwarranted search and seizure?

What's the fair thing to do when the law is ambiguous, contradictory or simply silent on an important issue?

What Michael Steele appears to miss in his diatribe above, interestingly, is that empathy works BOTH WAYS. It's not just a question of a justice pitying your adversary and punishing you for it. Ideally constructed, the justice should be able to think through the motivations of both parties before making her judgement. It would be easy, for instance, in the case of the small busines owner conducting drug testing, to apply a strict interpretation of the constitution that declares unwarranted searches without probable cause to be banned - but before she does that, I would hope she would think through the concerns of the business owner worrying that an employee on drugs could harm his customers or make damaging mistakes. I hope she'll consider that the employee has a choice to work there or not, and that this action may be a reasonable and proportionate way for the owner to protect himself and the public. I hope she'll give that fair consideration, understanding both people's point of view.

That's empathy.

What Steele was talking about - seeing only one person's side to the detriment of the other side - isn't empathy at all. It's prejudice.

And in my view, when a court is capable of ruling that a woman can't sue for discrimination even though she's been paid less than male colleagues for years, because the company was successful at hiding that information from her until it was too late - in my view, that's prejudice too.

What Steele objects too isn't that Obama wants to encourage empathy, it's that he wants to end the prejudice on the court that for years now has always favoured the wealthy and the comfortable in its decisions. That kind of consistent record of ruling doesn't betray a strict application of the law, it betrays a skewed interpretation.

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