Judicial Empathy

June 14, 2009

by Roger Koppl

Thomas Sowell and others have criticized Ombama’s call for “empathy” from the bench.  Criticizing the Sotomayor nomination, he says, “ ‘Empathy’ for particular groups can be reconciled with ‘equal justice under law’– the motto over the entrance to the Supreme Court– only with smooth words. But not in reality.” 

I have my doubts about Sotomayor.  For example, I fear she may too readily defer to law enforcement.  (See here and here.)  I think the quoted remark of Sowell is mistaken, however.  Empathy is a friend to justice.  

It is empathy that reminds us that each of us counts for one.  Consider the famous Dred Scott decision.  One of the Court’s findings was that black people were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”  The Court raised the alarming prospect that finding for Scott, “would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” 

The Court’s finding was a scandal that reflected a lack of empathy for Scott and for blacks in America more generally.  It was precisely lack of empathy that led to unequal justice under the law in this case. 

The issue is not merely historical.  Do homosexuals deserve empathy?  Arab-Americans?  Foreigners?  Significant judicial issues such as gay marriage and the right of habeas corpus turn on the question of empathy.  Does each of us count for one or do some of us count for less than one?  I cast my one vote in favor of the proposition that all men are created equal.

4 Responses to “Judicial Empathy”

  1. Max Says:

    I don’t think empathy means what you think it means. You have mangled Dred Scott beyond reason.

    As to the proposition that all men are created equal, I am equal to any member of any group for whom you feel empathy.

  2. Gene Callahan Says:

    But can one feel empathy even for, say, forensic economists? Doesn’t our instinctive sense that such are ultimately ‘other’ have some weight?

  3. koppl Says:

    Okay, I’ll bite. How have I “mangled” Dred Scott, Max?


  4. […] tip to the Austrians over at ThinkMarkets for this. More […]


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