It looks like we may be in the home stretch of President Obama's search for a replacement for David Souter on the Supreme Court. Once the nominee is named, the political battles will be focused and all-consuming. Before that happens, it is worthwhile to pause for one final word about "empathy," the announced presidential criterion that has engendered a surprising national debate over the past couple of weeks.
No one denies that empathy is an important quality for our daily lives, 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 an important part of good judging. Conservatives on the other hand denounce empathy, saying compassion breeds judicial activism.
Both sides are missing the point, since both sides are equating empathy with a kind of emotion.
The importance of empathy for the Supreme Court is not how it makes judges feel but how it makes judges think. And David Souter provided wonderful examples of its good use, and the current Court is a place where it is particularly important. Let me explain.
Our understanding of how humans think and make decisions is exploding. One thing the scientists and behaviorists tell us is that humans fall into a number of predictable traps when making decisions. Take, for example, the "familiarity effect," which means that 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, whether about our own driving ability -- most people believe they are above-average drivers -- or the chances of something happening in the future.
These pitfalls can be magnified when humans make decisions in groups. We tend to "herd" with others, making us less likely to dissent unless there is a critical mass of other dissenters. If we identify too much with other group members, we can succumb to peer pressure (even without knowing it) and reinforce rather than correct their mistakes. 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 (one woman) and race (one person of color), but other aspects of its sameness are less obvious. Five of the nine graduated from Harvard Law and two from Yale, with only one (Stevens) graduating from a law school away from the East Coast (Northwestern). Only two served on a lower court outside 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 appreciate the situation of someone from a different background or in a different situation is essential. This kind of empathy is not just a feeling but also a method of thought, a practice of questioning one's own perspective long enough to "check your work." This kind of empathy protects all of us, because it encourages even a very homogeneous group of judges to imagine themselves in another's shoes 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. Though he is a Harvard- and Oxford-educated New England Republican and a former prosecutor, his contributions were often in his consideration of people unlike him. When I clerked for him 15 years ago, he wrote a 5-4 opinion for the Court awarding a new trial to a down-on-his-luck African-American man from New Orleans named Curtis Kyles, who had been on death row in Louisiana for almost a decade. Souter's opinion argued that Kyles deserved a new trial because the police hid evidence that would have helped Kyles's defense.
The case was not a big news maker, and that year was filled with cases with more national impact. But I was 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 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.
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. Empathy will have to suffice until diversity arrives.