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Rethinking Empathy

By Jack M. Balkin

Empathy is hot among liberals. President Obama insists he will appoint a Supreme Court justice able to empathize with the litigants before the Court. Conservatives are aghast.

From one perspective, who could be against empathy, particularly if empathy is understood as an ability to see things from the perspective of the various litigants. This obviously should be in the toolbox of every judge, everybody who makes decisions, and all human beings.

On the other hand, I imagine members of the Nazi Party, the Klan, Al Quida, etc., regard themselves as persecuted victims. Many probably firmly believe that our disdain of them is a consequence of a failure of empathy. If we could truly imagine the world they see, we would be on their side. I suspect all I can say is that I think the world they see is distorted. Nevertheless, this suggests to me that, whatever the theoretical differences, most failures of empathy are likely to be rooted in different values, not judicial abilities or inabilities to see the world from the perspective of other people.

In a great many cases that justices decide, I suspect, empathy problems may exist on all sides. Consider the strip search of the 13 year old girl that is presently Exhibit A for the merits of empathy. On the one hand, as has been pointed out, Justice Ginsburg is the only member of the present Supreme Court who has the experience of being a 13 year old girl. On the other hand, all the Justices have had the experience of being 13 years old (can Stevens remember that far back?), many, I suspect, have had the experience of being in a middle school with an overbearing assistant principal, and several, I believe, have had the experience of having a thirteen year old daughter, friend, or sister. I am 3-3 on that score. On the other hand, how many Supreme Court justices have had the experience of being a harried middle school principal in an overcrowded school with significant drug and alcohol problems? How many have family members or close friends that fit that description? Put differently, I am not exactly sure where the failure of empathy is most likely to occur in this case.

In short, a good justice should try to learn as much about the values actually at stake in the case and the perspectives of the different parties. But empathy may be more of a slogan than a plan of action.

Full post as published by Balkinization on May 23, 2009 (boomark / email).