Judges: you never really understand a person until you consider things from his point of view.

Dahlia Lithwick writes of her legal hero, Atticus Finch, and the noxious myth that empathy has nothing to do with being an effective judge:

Atticus’s life instruction to his daughter, Scout. As he explains, “If you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.” In summer 2009, and again this July, the United States was roiled by debate about Barack Obama’s promise to appoint a supreme court justice who embodies this quality of “empathy”. Scores of critics asserted that judicial empathy is the same as judicial bias; that judges are at their best when they coldly and mechanically apply the law. There is no place for climbing inside anyone else’s skin as a judge. There is only truth and cold fact.

How strange it is, that we have come to a place in the national debate about justice when Atticus Finch’s mild admonition to his daughter to try to walk a mile in someone else’s shoes has become the definition of dangerous judicial activism. While Atticus still has much to teach lawyers about race and violence and prejudice and the rule of law, I have also come to think of him as the patron saint of patient, quiet listening; a quality to which all of us ought to aspire.

David Souter gives a lesson in judging and the failures of Originalism.

Former Supreme Court Justice David Souter recently gave the commencement address at Harvard. In doing so, he set forth clearly and in ways anyone can understand why it is ridiculous to suggest that interpretation of the Constitution merely requires a judge to engage in a “straightforward exercise of reading fairly and viewing facts objectively.” He makes clear that, in his words, such a simplistic view “has only a tenuous connection to reality.” In doing so, he answers “criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”

The entire speech is worth reading for anyone interested in a high-level lesson in constitutional analysis given in clear, straightforward prose. I will try here to touch on a few of its highlights.

First, Souter points out that many of the Constitution’ guarantees are phrased in such open-ended language that they necessarily will require a large degree of interpretive work to determine their application to new facts in new times: ‘The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.” He contrasts these provisions to provisions that provide bright lines that make decision easy — provisions such as the requirement that Senators be 30 years old.

But, as he makes clear, pointing out that determining, for example, whether a given governmental action satisfies the requirement of “due process” “hardly scratches the surface” of constitutional judging. First, provisions may be clear and yet any consideration of their real implications makes obvious that they cannot be applied literally. Second, as I’ve pointed out before (in discussing why “empathy” plays a far greater part in judging than implied those who would suggest empathy is merely soft-heartedness), determining which facts are more or less significant makes all the difference in the world of a judge:

The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.

To make these points, Souter uses two examples. The first was the Pentagon Papers case, in which the “New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication.” While the Court ruled that the newspapers had the right under the First Amendment to publish the Pentagon Papers, it did not do so on the simple basis that the First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” (emphasis added.) Instead, the Court adopted the interpretation advanced by Irwin Griswold, who responded to the suggestion by Justice Black that the case was a simple one of applying the rule that “no law” means “no law” with the argument that it was not so simple:

Now Mr. Justice, your construction of that is well-known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true.

Thus, the [C]ourt’s majority decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.”

How can it be that “no law” does not mean “no law”? Isn’t that kind of “interpretation” exactly the kind of thing that gives judges a bad name? As Souter makes clear, it is nothing of the sort; it’s the reason we consider judging an activity requiring the utmost in wisdom, intelligence, and experience. The First Amendment guarantee of freedom of the press cannot possibly be absolute because the Constitution provides for a plethora of other individual rights and governmental obligations, no one of which is entirely consistent with the other. As the examples above illustrate, we also have to account for the constitutional authority of the President to provide for national security . As anyone who has considered matters of individual liberty at any depth know, individual liberty is often necessarily at odds with equality. Yet the Constitution guarantees both individual liberty and equality. As Souter explains, an interpretation based on merely believing “no law” in the First Amendment means “no law”

fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law.

Souter’s second example is The Supreme Court’s decision in 1954 in Brown v. Board of Education, in which the Court unanimously held that racial segregation in public schools imposed violated the Constitution’s guarantee of equal protection of the law. As Souter explains, “Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites.”

Souter, significantly, thinks that best explanation for the differences in the results between Plessy and Brown is an explanation that is forbidden to those who would believe the Constitution means now what it did in 1789 and must always mean what it meant in 1789: “the difference between the cases is the dates they were decided.”

How can this be so? It is because the significance of facts differ from judge to judge, and, of course, the significance of facts differs over time. What seemed equal treatment of the races in 1896 — when the contrast was to the recent legality of slavery — no longer seemed equal in 1954, and it would be folly to suggest otherwise:

[T]he generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.

As Souter so succinctly puts the matter: “So much for the assumption that facts just lie there waiting for an objective judge to view them.” And so much for the contention by John Roberts that judging is merely a matter of “calling balls and strikes.” As Souter says, such a simplistic view of what judges do “fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” “Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Most fundamentally, Souter sees the contrast between his view of the Constitution and the view of those who would have it that judging his way means that he is making it up along the way to evade the plain language of the law as the contrast between those who would impose certainty in a world where there is no certainty. Most importantly, Souter believes that, in the face of uncertainty, we fulfill our national aspirations best by applying reason and judgment to the application of the principles that our nation was established to uphold:

Where I suspect [I] differ most fundamentally[from the those who would apply a simple, literal meaning to constitutional language] is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

Melissa Harris Lacewell on Empathy, its importance to social cohesion, and more on its importance to good judging.

Wisdom from Melissa Harris Lacewell on the centrality of empathy in creating a United States:

[W]e are participants in a nation only to the extent that we imagine ourselves to be part of a community or a “people.” Empathy is an important part of what allows us to engage in that imagined sense of linked fate, shared identity, and common purpose. Without empathy we cannot enter into a social contract whereby we are willing to subjugate some of our selfish impulses in order to abide by the rule of law and the dictates of a civil society.  

As Laura E. Little points out in “Adjudication and Emotion,” 3 Florida Coastal Law Journal, 205, 210 ( 2002)  , “Empathy . . . may actually facilitate the process of understanding competing points of view so necesssary to quality adjudication. As Judge Richard Posner argues, empathy enables a judge to integrate into her decsionmaking remote human interests that are not immediately before the judge, but are possibly affectetd substantially by the judge’s decsions. Posner praises empathy for its cognitive character, suggesting that the emotion more likely reflects an evaluation of beliefs, rather than an ungrounded emotional reaction that short-circuits reasoning.” [Citing Richard Posner, “Emotions versus Emotionalism in Law,” The Passions of Law (Susan A. Bandes, ed. 1999).

Richard Posner too knows empathy is a component of good judging.

Richard Posner “is considered to be one of the most respected judges in the United States, and “although generally considered a man of the right, Posner’s pragmatism, his qualified moral relativism and moral skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives.” Posner is a judge on the U.S. Court of Appeals for the 7th Circuit, and he quite plainly recognizes that empathy is a fundamental component of good judging. As he writes in How Judges Think (at 117; emphasis added):

Another . . . major factor in judicial decisions in the open area [that is, where the language of the law does not prescribe a clear answer] is “good judgment,” an elusive faculty best understood as a compound of empathy, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a sense of reality and common sense. . . . It is another of the means that people have for maneuvering in situations of uncertainy. If law were logical, “good judgment” would not be an admired quality in judges – as it is even by legalists. 

Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so too.

Kevin O’Brien of the Plain Dealer expresses the view of many who mock President Obama’s desire that his Supreme Court nominee have “empathy”:

I have scoured my pocket copy of the Constitution. Couldn’t find a single reference to “empathy,” though. I tried searching an online version, too, but when I typed “empathy” in the search window, the only answer I got back was, “Did you misspell something?”

I looked up the oath of office that Souter’s successor will take. I don’t see “empathy” there, either, . . . 

O’Brien and his ilk have a stunted view of what it means to be a judge. Applying the law is not like doing algebra; instead, it is far more often (at least in cases so contested they get to the Supreme Court) a matter of making difficult judgments that involve weighing values and consequences in the real world. It hardly is ridiculous to consider “empathy” a valuable quality in making these judgments. One need not look far into the past to see a case where an inability to empathize with what Congress plainly intended led to a ridiculous (and soon overturned) outcome.

But you need not take my word for it.  Oliver Wendell Holmes, Jr., Supreme Court justice and one of the most influential intellects in U.S. legal history, made clear in The Path of the Law that it is a fallacy to think judges can apply only logic to the law and that a keen sense of the social impact of one’s decisions is fundamental to sound judging (emphasis added):

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. . . . The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. . . .

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

. . . There is a concealed, half conscious battle on the question of legislative policy, and if anyone thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus [always, everywhere, and for everything]. . . .

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

Justice Roberts: I am the best qualified to do what I do.

From the New York Times:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, “the practice of constitutional law – how constitutional law was made – was more fluid and wide ranging than it is today, more in the realm of political science.”

I’m not sure I could disagree more strongly. As I’ve emphasized in recent weeks (here, here, and here), I think judging is first and foremost doing justice. A variety of viewpoints (including those of “former governors, legislators, cabinet members, law professors and practicing lawyers”) is far more likely to lead to justice as it is defined in the real world than the abstractions of appellate judges.

In fact, I think one of the principal weaknesses of the Supreme Court as it is presently constituted is the lack of experience the Justices have with the real world — even with the real world in a legal sense. The judges were not trial lawyers for regular everyday people; they were not trial judges. All appellate judges ever see are written documents (the arguments of lawyers, the documentary and physical evidence submitted in trial courts, and transcripts of testimony in lower courts). They don’t see witnesses. The only people they see in their professional lives outside their own chambers are lawyers during oral argument. Very few cases, in fact, get appealed. The vast majority have too little at stake to make any appeal financially practicable.

In short, a Court consisting only of people whose principal occupations have been as corporate lawyers, government lawyers, and appellate judges is a Court about as divorced from real life as possible. Is that really the ideal Court? Of course, Justice Roberts would think so. I’ve always believed that the vast majority of people who succeed in any given system believe that system is a true meritocracy. If Justice Roberts was an appellate judge, and if the Supreme Court consists of only appellate judges, is it really any surprise he thinks appellate judges make the best Supreme Court Justices?