INTERPRETING THE CONSTITUTION, PART II (EMPATHY)

Everyone's talking about "empathy" and the Court these days.

The President says he wants his appointment to the Supreme Court to be someone with "empathy." Those who have already lined up to trash the prospective appointee, whoever she (or he, though that seems less likely) might be denounce the very idea of empathy as extralegal squishiness.

Obama's initial comments regarding what exactly he's looking for in a replacement for Justice Souter probably didn't help:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. 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 people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

Frankly, that doesn't sound like a description of someone who puts fidelity to the Constitution first. It sounds like someone who puts "justice," whatever that might be, first. And while one surely hopes that "justice" and fidelity to the text of the Constitution will always coincide, that hope seems unlikely given that we begin with a document by and for landed white men, a document which enshrined slavery, a document which didn't count native Americans at all and counted slaves as three-fifths of a person. (Constitution here. Three-fifths is Article I, Section 2, Paragraph 3.)

Of course, the rest of the paragraph took a different tone:

I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

But that does little more than avoid the question of just what Obama would see, in an appointee. What, after all, are those "constitutional traditions" and "constitutional values"? Are they aspirational goals or precise limitations imposed by the framers? Is it a living Constitution or a dead one?

I began this discussion last week (here) and noted that the data suggests that most questions the Court decides are relatively simple. The language of precedent, statute, rule, and Constitution often brings the Court to results on which all or nearly all Justices agree. But not always. And while each side in the hotly disputed cases often takes the other to task for lack of integrity to the underlying principles at stake, the truth is that those principles are frequently not all that clear.

It wasn't intellectual dishonesty (by which I don't mean to discount the prospect that Justices are intellectually dishonest some of the time) that led Justices Roberts and Breyer to articulate (and then vote for) dramatically different understandings of what law and precedent and the Equal Protection Clause require in regard to school desegration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (here). It was a fundamentally different understanding of what the Constitution means and how to decide what it means.

It's a difference Obama's been talking about, using the language of empathy, for a long time. (Here's a compilation, the "Obama Empathy Speech Index.") He's been addressing it in the context of the Court at least since he explained why he wouldn't vote to confirm John Roberts as Chief Justice:

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

Of course, if you believe that Obama is fundamentally wrong to think that in even 5% of the cases a purely objective look at the language of the Constitution, the statute, the precedent will not resolve matters, then perhaps you'll think anything besides pure logic is irrelevant to being a Supreme Court Justice. With sufficient rigor, the answer will always be clear.

In the second of a series of essays condemning the idea of empathy as a criterion for selecting a nominee to the Court (here), Thomas Sowell retold this story about Justice Holmes:

After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: "Do justice, sir. Do justice."
Holmes had the carriage stopped. "That is not my job," he said. "My job is to apply the law."

If it were that easy, a machine could do it.