There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court. When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 percent of cases that are truly difficult.” Obama further explained:
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.
Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.” He writes:
What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30” side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.
Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.
In The Concept of Law, H.L.A. Hart famously observed:
Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture.
In these cases, Hart posited that judges have discretion to decide the case either way. The law simply has nothing to say. Ronald Dworkin took issue with Hart’s claim that “hard cases” could not be decided by law. In Taking Rights Seriously, Dworkin argued that “even when no settled rule disposes of the case, one party may nevertheless have a right to win.” He contended that principles may “incline a decision one way, though not conclusively” and that “in most hard cases there are right answers to be hunted by reason and imagination.”
For a legal positivist following Hart, the 5 percent of cases (the “hard cases”) Obama is talking about have no legal answer. Obama wants a justice who will decide them in a way he desires. As Orin posits:
A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless.
For Hart, this is fine — in hard cases, judges are outside the law, so they can’t decide the case based on law. For Dworkin, the hard cases would require that justices look to principles, and they would not be free to side with their political ideology. Their empathy might make them inclined to find or interpret principles that favor the powerless, but cases would not be decided by pure ideology. Orin’s post seems to be viewing Obama’s jurisprudence as legal positivism in the tradition of Hart.
There’s something missing from the Hart-Dworkin debate, which Orin alludes to in his post. How readily will a justice recognize ambiguity? Orin raises the concern that the empathetic judge will too readily find cases to be hard. So instead of finding 5 percent of cases to be hard, an empathetic justice might find a greater precentage to be hard.
In an article I wrote long ago as a law student, I argued that Hart and Dworkin failed to adequately theorize how judges perceive whether a case is hard. In order to apply rules and precedents, judges must determine whether a case fits, whether it is similar enough to other instances in which the case or the rule applies. But no two cases are exactly alike. I wrote:
The level of generality with which a judge perceives the facts of a case has a profound impact on how she interprets these facts. Interpreting the facts involves sifting out the trivial ones and locating the nuggets‑‑those facts which are critical to the decision that must be made. This interpretation is vital to how judges categorize cases, in how judges determine whether a case fits under an general proposition.
We perceive events and situations at varying levels of generality. At a high level of generality, we do not notice subtle differences, but at a more individuated level, we can observe the unique intricacies of each case. For example, we will not notice the differences between two snowflakes unless we examine them closely. As proximity increases, a judge will often become more aware of the imprecision of general legal propositions. For example, in Lorenzo v. Wirth, Judge Holmes, then a state court judge, held that a defendant should not be liable when a plaintiff fell into an open coal hole on the defendant’s property. Holmes declared: “A heap of coal on a sidewalk in Boston is an indication according to common experience that there very possibly may be a coal hole to receive it.” After reading Holmes’ opinion, this appears to be a rather easy case. However, Judge Knowlton, dissenting, supplies a critical fact that Holmes left out: the plaintiff had just come from Spain and had never seen coal put into a cellar through a coal hole. The introduction of more facts makes the case more unique, and thus more difficult to fit into general categories. Indeed almost any case, when viewed at a great distance, when depicted in the most general of terms, will present no difficulties for general legal propositions. As Judge Richard Posner wrote: “The more facts that are stated in an opinion, the easier it is for judges in subsequent cases to distinguish, narrow, confine, and otherwise diminish the scope and impact of the opinion.”
Perhaps the more empathetic judge is one who views cases at a closer level than the non-empathetic judge. The non-empathetic judge sees things at a great level of generality. The empathetic judge is more inclined to focus on the facts that make cases different and unique. Empathetic judges are more inclined to put themselves in the litigants’ shoes rather than view the case abstractly and distantly. Such proximity may incline a judge toward more compassion for litigants, but it need not necessarily do so. Indeed, empathy in this sense need not be confined to liberal judges. Justice O’Connor was one who was very inclined to focus on the facts and see cases as different.
Empathy is just one of the components Obama mentioned he was looking for in a justice. As I’ve discussed in this post, empathy could have two meanings: (1) it could mean judges who decide the 5 percent of hard cases for the powerless.; or (2) it could mean judges who find more cases to be hard than 5 percent. The empathetic judge might exhibit a combination of (1) and (2) above or not. They are different issues after all.
Ironically, empathy in the first sense would not be replacing law with politics as some critics may charge at least not from Hart’s perspective. In hard cases, the law is silent.
In the second sense, is empathy more akin to lawlessness? True, in a Hartian perspective, the judge who finds more cases to be hard will find more cases to be beyond the law. But if those cases are indeed hard cases, then such a judge isn’t being lawless. In fact, such a judge is being faithful to the law by not twisting it to fit cases it doesn’t fit.
Sadly, the issue gets perverted by the common critique that judges are being lawless or activist. The issue is much more complicated, and it involves questions in jurisprudence that haven’t been adequately worked out.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.