Religion & Law

With President Obama's coming Supreme Court pick, there has been a lot of talk about judicial empathy.  I found Orin Kerr's discussion of the concept to be very helpful.  Here's an excerpt:

I think there are two different ways to deal with . . . legal ambiguity. One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage. If a case is 55/45, them there is a correct answer, because 55 is greater than 45. The position with the greater support in the legally relevant materials wins. Of courser, there may in fact be cases that are genuinely 50.000/50.000, and in those cases, perhaps the judge can pick the side. But those cases are very rare: Even in the hard cases, there is usually one side that emerges as slightly stronger than the other. 



That's one approach, at least. The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants. You don't wait for a case to be truly 50/50 for this. So long as there is some appreciable legal ambiguity, there is no clear "correct" answer. Maybe 70/30 is enough, or maybe even 75/25 will do. Either way, the lack of a "correct" answer means that the judge can rule in a way that furthers whatever normative vision of the law that the judge happens to like.

I think there is a legitimate role for judicial empathy at the trial court level (particularly when pro se litigants are involved), but I get a little nervous about calls for empathy when it comes to Supreme Court nominees.  Is there a place for judicial empathy in Catholic legal theory?  Does it matter what the context is?  Wasn't Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that "the child is not the mere creature of the state" as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren't we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?