Minding The Heart Is Jurisprudent

07/05/2009 05:12 am ET | Updated Nov 17, 2011

Talking heads will not stop droning on about Obama's use of the word empathy as a requirement for his Supreme Court nominee until they stop to think . . . about how we think.

And I'm hopeful that my words will help them do so. Life is more interesting when you have even the slightest bit of insight as to how the 100 billion neurons inside your head make you think, feel, and do.

At the very least, it prevents knee-jerk comments, like Nina Totenberg's "empathy is a stupid word to use". Or declaring that "empathy is the last thing a Supreme Court justice needs, having no place in jurisprudence . . ." in a letter to the editor of the Los Angeles Times.

Obama said empathy is at the heart of his moral code. Republican Senator Orrin Hatch of Utah branded it as "a code word for an activist judge" and with that "empathy" took a back-seat.

Judgments come crashing down with gavels in courtrooms and in the minds of ordinary people as we go about life judging people and cases, both legal and not. And we do so without knowing legalese.

Voltaire, the French Enlightenment writer, didn't rely on the written law as inspiration for his crusades against injustice. He believed humans are endowed with an unconscious moral sense for the law that's independent of explicit rules.

Indeed, we need think no further than the contempt reflected in the media outcry after the bosses of the AIGs, Bear Stearns and Lehman Brothers were rewarded with fat bonuses while the government used taxpayer dollars to bail out the financial mess they and politicians helped create. Accusatory fingers were pointed without nary a person having pored through the Code of Federal Regulations.

Obama would be delighted to know a moral code has been evolutionarily wired in our brain ever since we stopped walking on all fours. The brain has a mechanism for acquiring moral rules similar to the one for learning language that is genetically programmed, as the Harvard evolutionary biologist Marc Hauser said in his book "The Moral Minds".

Humans have been abiding by unspoken rules of reciprocity and fairness -- the golden rule -- over millennia. And when we misbehave we pay a price like getting yelled at. Punishment serves to limit naturally selfish tendencies at cross-purposes with cooperation and, more importantly, survival of the species.

Underpinning the moral code are moral emotions like guilt, shame, revenge, the disgust we instantly feel for Bernard Madoff.

To empathize is to mirror others by mentally "rehearsing" their actions to put ourselves in someone else's shoes. Some of us fail miserably (Stalin) while others (Mother Theresa) really feel your pain.

Empathy is critical because it enables social intelligence or the ability to read body language and express our own. Navigating the social world intelligently means judging: where someone's coming from (is Madoff being deceitful?), where someone's going (is my boss going to scold me?) and to plan our actions (I'll work harder).

It also allows us to recognize a friend just by their gait and to subconsciously acquire the mannerisms of our spouse. And it is why yawning is contagious.
Without empathy our social chess-game is awkward and played for selfish benefits, without considering the feelings of others.

But how do we know empathy is a social lubricant?

At the University of Sheffield, Dr. Tom Farrow scanned the brains of volunteers (using functional MRI) while they came up with reasons why people drive without a license or don't pay rent. Those whose explanations reflected empathy for the wrong-doers relied on a part of the brain above the eye-sockets called the prefrontal cortex (PFC).

Dr. Jorge Moll, neurobiologist, Labs D'Or in Brazil, scanned the brains of volunteers as they judged moral statements (we break the law when necessary) and non-moral ones (paragraphs contain words) as right or wrong. Again, results showed the PFC is more active when judging the moral versus the plain factual.

In subsequent studies, scans showed that brain damage at the bottom of the PFC - the ventro-medial prefrontal cortex -- results in cold-hearted reasoning: it's okay to push a man in front of a moving train to stop it and save the lives of five workers down the track. Those with normal brains would not sacrifice a human life because their relevant moral sentiments (empathy, guilt) were intact, making such an act horrifying.

But do judgments that rely on moral emotions like empathy take place in a court of law?

Justice Scalia would say "no" claiming it generates subjective thinking and ad hoc unprincipled decisions. Surprisingly, the jurist on the Court perceived as most in tune with Scalia, Justice Thomas, says the hardest thing about being a justice is when he has to listen to his mind, and not his heart.

Law schools teach the Langdellian approach: The logic in a legal case is teased out by permutating facts and interpreting it against the written law. Judges lay out logical parameters for the jury to use when mulling a decision. And in non obstante verdicto, the judge is granted the power to nullify a jury's verdict if he finds it had no rational basis.

But does this really square with our morally rounded brain?

In 2009, an airline called Mesa tried to acquire the name of Aloha Airlines who had filed for Chapter 7 bankruptcy. Mesa helped put Aloha out of business by misusing confidential information obtained from Aloha and Hawaiian Airlines. When Mesa was sued by Hawaiian for that, Mesa tried to conceal its conduct by submitting false testimony and destroying electronic data.

In refusing to approve the sale that would have allowed Mesa to acquire the Aloha name, the judge had harsh words for Mesa's misconduct: "Mesa relied upon sworn misstatements, which were intended to cover the truth concerning its dishonesty and destruction of records. Mesa succeeded in inflicting great harm, not only upon Aloha but also upon its employees and their families. Now Mesa seeks to perfect its wrongdoing by becoming Aloha . . . While no cases have been found with comparable facts, it's difficult to imagine a court overlooking what Mesa has done and putting its stamp of approval on their becoming Aloha."

It's impossible to know the extent to which the judge's evident contempt for Mesa's behavior influenced his decision. "While lawyers should always focus on the law and the facts in preparing cases, they cannot ignore that judges are people who may react negatively to facts that show either side as being unprincipled or undeserving of the judge's goodwill", says lawyer Sidney Levinson, of Hennigan, Bennett and Dorman LLP.

Obama can rest assured: Though we envision ourselves as logical thinkers, we're really feeling beings who tell rational stories to make sense of our brain's moral emotions. Whether or not it's the guy next door or the person with a gavel wearing a black robe.