By Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College and is presently writing a book about choice and consent in law, politics and economics. Greenfield is a former Clerk to Justice David Souter (1994-95).
Ever since President Obama announced that he would seek out an empathetic replacement for David Souter on the Supreme Court, the nation has engaged in a revealing debate about empathy. No one denies that empathy is an important quality for our daily lives, and something we should engender in our kids. But there is an honest disagreement about whether empathy is an appropriate qualification for a judge.
Liberals like empathy, because compassion brings mercy, and mercy is seen as an important part of good judging. Conservatives denounce empathy, saying compassion breeds judicial activism. Law professor Steven Calabresi has warned that asking judges to be empathetic is like removing the blindfold from the iconic Lady Justice, allowing the judge to decide in favor of whichever perspective elicited more feelings of compassion.
If empathy is simply a matter of being open to feeling a certain amount of sympathy for one party or the other, the conservatives may be right that it creates risks for a judicial institution. Judges might be too quick to base judgments on unacknowledged bias or prejudice.
There is a better definition of empathy for the judicial context, however, that focuses not on how judges feel but how they think. This kind of empathy is not only beneficial for the institution, but crucial. And David Souter has embodied this kind of empathy in his tenure on the court. Let me explain.
Our understanding of how brains produce decisions is expanding by the day. Fascinating research is being performed, and popular books such as Jonah Lehrer's How We Decide, Daniel Ariely's Predictably Irrational, and Daniel Gilbert's Stumbling on Happiness are bringing the insights of this science to the mainstream. The legal implications are tougher to see and lawyers are a bit behind in translating the insights to law, though scholars such as Cass Sunstein, Jon Hanson, Owen Jones, and others are making important contributions.
One thing we're learning is that humans fall into a number of predictable traps when making decisions. We tend to like things that are familiar - whether people, beliefs or products - and we like them even more when we feel threatened or stressed. So new ideas get short shrift, and the status quo gets an advantage unrelated to its merit, especially in difficult times. We are also guilty of "motivated reasoning," scrutinizing ideas we disagree with more than those we agree with. Our brains also trick us into noticing facts that confirm what we already think - "confirmation bias" - and disregarding things that would tend to disprove our preexisting notions. We are also overconfident about our own predictive or analytical judgments.
These pitfalls can be magnified when humans make decisions in groups. We tend to "herd" with others, which makes us less likely to speak up in dissent unless there is a critical mass of other dissenters. If we identify too much with others in the group, we can succumb to peer pressure (even without knowing it) and tend to reinforce rather than correct the mistakes of others in the group. These defects in decision making are therefore more pronounced in groups that are homogeneous in makeup.
By that measure, the Supreme Court is a dangerous decision-maker. Everyone can see its homogeneity in terms of gender and race, but other aspects of its sameness are less obvious and perhaps more important. It is dominated by jurists from Harvard and Yale who served on lower courts on the "Acela corridor" between Washington and Boston. The court has only one Southerner (Thomas), and eight of the nine were born on one of the coasts.
In such a homogeneous group, a Justice's intellectual ability to imagine and appreciate the situation of someone from a different background or in a different situation is essential. This kind of empathy is not a feeling but a method of thought, encouraging the Justice to question his or her own perspective long enough to "check their work." This kind of empathy protects all of us, because it encourages even a very homogeneous group of judges to put themselves in the place of the Other when making decisions. It also makes it possible for the group to avoid the "herding" that accentuates the flaws of group decision-making. So empathy is critical not because of the need for compassion, but because of the need to produce the only thing the court is supposed to produce: good decisions.
This is where Justice Souter excelled. He is a Harvard- and Oxford-educated New England Republican, but his contributions were often in the understanding of people completely unlike him. When I clerked for him, he wrote a thoroughly detailed and tightly argued 5-4 opinion for the court awarding a new trial to a down-on-his-luck African-American man named Curtis Kyles, who had been on death row in Louisiana for almost a decade. Kyles was as different from Souter as any party to a Supreme Court case I know about. Notwithstanding that fact, and despite Souter's own experience as a state prosecutor, Souter's opinion argued that Kyles deserved a new trial because the police had hidden evidence that might have helped Kyles prove his innocence.
The case was not a big news maker, and that year was filled with cases with more national impact (Lopez, most prominently). But I was always struck by Souter's attention and care in the Kyles case. He might have taken it lightly or not thought to challenge the arguments of the state officials with whom he might have identified. His contribution was not one of feeling a certain way, but of thinking differently from what his own background might have suggested that he think. This kind of empathy did not lead him astray or make him "activist," but helped him articulate an important rule of constitutional law - that prosecutors cannot hide evidence. Without such empathy, Kyles would have been put to death for a murder he probably did not commit, and it would be easier for any of us to be falsely accused.
Another example came in a search and seizure case called United States v. Drayton. There, a bus was stopped in the middle of the night, far from its destination. Police boarded it and stood at the rear and the front. An armed officer walked up and down the aisle, approached two seated passengers and asked them to open their luggage. The officer stood over them, blocking their exit, and did not say they had a right to refuse. The passengers "agreed" to have the police look in their bags, and a significant amount of cocaine was discovered. The Supreme Court held that this was a consensual search, since the passengers had a choice - they could have gotten off the bus.
It's hard to be sympathetic to defendants who are carrying several kilos of cocaine in duffel bags stashed in the overhead rack of a greyhound bus. But Justice Souter's dissent made the important intellectual point that the consent was manufactured rather than genuine. In analytic prose, the Justice described the power of police in situations that - in all likelihood - he had never faced. "The police not only carry legitimate authority but also exercise power free from immediate check, and when the attention of several officers is brought to bear on one civilian the balance of immediate power is unmistakable. We all understand ... that a display of power rising to ... [a] threatening level may overbear a normal person's ability to act freely, even in the absence of explicit commands or the formalities of detention."
Again, his ability to take a different point of view was not an emotional exercise but an intellectual one.
The court will miss David Souter's intellectual empathy. Perhaps over time the court will become less homogeneous, and this kind of intellectual empathy will be less crucial. But in the absence of a Supreme Court that looks like America instead of a Harvard Law alumni luncheon, empathy is necessary to reach outcomes that are not only fair but well-reasoned.