I recently suggested that Justice Sam Alito's lonely dissent in the Phelps First Amendment case seemed to embody the "empathy standard" for judicial review, the very standard that Republicans warned about in the Supreme Court nomination hearings for Sonia Sotomayor and Elena Kagan. Over the weekend, Emily Bazelon made a similar observation in a provocative piece for The New York Times Magazine. In it, she called Alito "the closest thing conservatives have to a feelings justice" and said that, in his opinions, "we get a window onto right-wing empathy on this court."
Bazelon's profile of Alito is worth reading in full as it provides a portrait of how empathy may be used to underscore and affirm personal feelings, rather than transcend them. This was precisely the fear of Republicans on the Senate Judiciary Committee. They believed, in the words of Alabama Senator Jeff Sessions, that empathy "empowered" a judge to "favor" some plaintiffs over others, and that the President's desire to appoint judges with a special capacity for empathy essentially meant, in the words of Utah Senator Orrin Hatch, that he intended "to pick people who will take sides."
I have said that this misconstrues what the President has said about the role empathy might play on the bench. The "empathy standard," as Republicans have portrayed it, is one that a judge might use to trump the clear letter of the law or to provide support to the weaker argument in a case where the less sympathetic party has the legal upper hand. (Phelps is one such a case, which is why Alito's dissent is so striking.) In contrast, the President has said that empathy may play the role of tie-breaker, not case-breaker, when what the law demands is inconsistent or fundamentally unclear. A 5-4 decision tends to be indicative of such a case. 8-1 is not.
Still the question remains: what exactly does President Obama mean by empathy?
For this, one must turn to the President's only extended discussion of empathy in The Audacity of Hope. There he describes empathy with reference to Paul Simon, the late senator from Illinois who was a supporter of Obama during his 2004 Senate campaign. Simon was an unapologetic liberal, but the President notes that people across the political spectrum came to admire him because they could sense "he cared about them and what they were going through." He goes on:
That last aspect of Paul's character--a sense of empathy--is one that I find myself appreciating more and more as I get older. It is at the heart of my moral code, and it is how I understand the Golden Rule--not simply as a call to sympathy or charity, but as something more demanding, a call to stand in somebody else's shoes and see through their eyes.
The distinction between "sympathy or charity" and the "call to stand in somebody's else's shoes and see through their eyes" is important. The second exercise is what we traditionally call empathy. In cases of suffering, it may lead to the first, but the act is characterized not by the pity we feel for others but by our attempt to understand their reality. We do this by trying to imagine the emotional topography of their world, their setbacks and triumphs, their blessings as well as their burdens. If we are black, we imagine what it would mean to be white. If rich, poor. If lonely, beloved. We doff our own experience and try on another. For a moment, we live someone else's life.
This is empathy, a practice the President deems necessary for "understanding and identifying with people's hopes and struggles." Saying further, as he does, that it is "an essential ingredient for arriving at just decisions and outcomes" is novel, but not because it calls for a judge to rely on the counsel of experience. Justices as different as James Wilson, Oliver Wendell Holmes, Benjamin Cardozo, and Sandra Day O'Connor have all said as much. In fact, when Obama nominated Kagan to fill the seat left vacant by John Paul Stevens, he cited Holmes's observation that experience "can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live."
No, insofar as empathy is a particular variety of experience, indeed, a gateway to the experience of others and so a means for taking an impartial view of our own, Obama's praise of empathy as an "essential ingredient" in judicial decisionmaking is neither novel nor particularly bold. What is bold is the faith he places in empathy. Believing that we can see the world through the eyes of others and actually seeing the world they see are two very different things. To gain access to your experience, I not only have to check my own experience at the door, I must part with the accessories of my identity -- the habits, tendencies, inclinations, and, yes, prejudices that give my experience its gravitational pull. At the same time, I have to array myself with yours, or at least make that attempt, for only by doing so can I truly be said to share in your experience. Otherwise, we are like two strangers standing silently before a portrait. We may see the same woman staring back at us, but if that woman once broke your heart, we are really seeing two different things.
President Obama has this faith, a very democratic faith and one that is peculiarly American. "In all people I see myself," Walt Whitman said, "none more and not one a barleycorn less." Whitman remains America's great poet-evangelist of empathy, and echoes of him can be heard in voices as diverse as Harriet Beecher Stowe, John Dewey, Harper Lee, and Richard Rorty. The President stands at the end of this line. He seems to believe that we can empathize with others, no matter how different they may be. Moreover, he thinks that this practice changes us. It resets our moral compass such that we come to view the concerns of justice not from our own perspective, but from the perspective of others, an exercise that yields the wisdom of a community rather than the insight of one. "That's what empathy does," Obama says, "it calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision. No one is exempt from the call to find common ground."
Obama's belief that empathy leads us to common ground is important for his vision of jurisprudence, as it provides a judge a sense of moral assurance when the law strays into uncertainty. Obama never discusses this faith in strictly legal terms, but he illustrates it in The Audacity of Hope when he describes what he calls an "empathy deficit." The social consequences of this deficit, and the actions we would take if it were overcome, point to Obama's faith in the power of empathy to provide common moral purpose. "[A]s a country," he says,
we seem to be suffering from an empathy deficit. We wouldn't tolerate schools that don't teach, that are chronically underfunded and understaffed and underinspired, if we thought that the children in them were like our children. It's hard to imagine the CEO of a company giving himself a multimillion-dollar bonus while cutting health-care coverage for his workers if he thought they were in some sense his equals. And it's safe to assume that those in power would think longer and harder about launching a war if they envisioned their own sons and daughters in harm's way.
As the passage attests, for President Obama, empathy does not reveal moral quandaries so much as make them irresistible, focusing the mind and giving one the courage and purpose to resolve them. At the same time, it universalizes the problems as well as their solutions. If we were all accustomed to standing in the shoes of others and seeing the world through their eyes, we would not only face up to the moral shortcomings of our society -- we would find common cause in resolving them.
But not everyone is so convinced, perhaps most notably Justice Sonia Sotomayor. Understanding others, she has cautioned, "takes time and effort, something that not all people are willing to give," and the experiences of some people "limit their ability to understand the experiences of others. Others simply do not care." For Sotomayor, the walls of personal experience appear much higher than they do to the man who made her name synonymous with judicial empathy. So high, in fact, that some people cannot scale them. We are left then not with the aim of shared experience and common wisdom, but with the hope that our personal experience yields a private wisdom that can make us more just and humane. Or, as Sotomayor famously distilled her hope, "that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life."
This is a challenge to the President's jurisprudence, for even if the law does sometimes stray into uncertainty, it does not necessarily follow that a judge should rely on the wisdom of personal experience instead. You have to further make the claim that, in the absence of legal certainty, the experience of trying to empathize with others can provide a judge -- or, for that matter, a collection of Justices -- a sense of moral clarity and common cause in deciding disputes. Otherwise, skepticism like Sotomayor's only serves to reinforce the broader conservative critique that the "empathy standard" is not an enlightened tool for adjudication in the breach, but a proxy for partiality on the bench.
John Paul Rollert is a doctoral student at the Committee on Social Thought at the University of Chicago. This post is adapted from Part IV of his essay Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard," which was recently published by the Yale Law Journal Online.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more