Stanley Fish takes on the concept of Obama's call for a Supreme Court appointee who brings empathy to jurisprudence. There's some interesting points involved. I fall on the side of the empathy team because law, to my mind, is a tool which should be in service to humanity rather than the reverse. Just because we can create an architecture that is a geometric wonder of internally consistent theorems we cannot expect that system to necessarily produce the more organic idea of justice, which is not, after all, what the system is intended to produce?
President Obama wants Supreme Court justices who have empathy. What could be wrong with that, asks Dahlia Lithwick ("Once More, Without Feeling," Slate.com): "When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering?"
It may not be that simple. Obama's invocations of empathy combine a concern for the less advantaged with a theory of constitutional interpretation. Speaking to his choice to fill the seat soon to be vacated by Justice Souter, Obama said, "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives." That kind of judge, Obama explained, will have empathy: "I view the quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
The phrase "just decisions and outcomes" seems beyond reproach (who could object to it?), but many will hear it with suspicion and say, "Just outcomes would be nice and let's hope we have some, but what courts should deliver is legal outcomes." You might think that "legal" and "just" go together, and sometimes they do; but in the real world "just" and "legal" can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.
It is possible then that a legal decision, a decision that has a source and a pedigree in the laws that have been formally set down, could offend one's sense of justice. And, conversely, it is also possible that a decision widely regarded as substantively just -- yes, that's the way things should be -- could at the same time be seen as illegal, that is, as not following from the rules and principles of settled law. This is precisely the criticism that has been made of Brown v. Board of Education (most notably by Herbert Wechsler in his influential Harvard Law Review article "Toward Neutral Principles"); yes, the result is good, the critics acknowledge, but where, they ask, is its legal -- as opposed to its empathetic -- basis? And on the other side it was said, and is still said, that any jurisprudence that cannot accommodate Brown v. Board is a jurisprudence we must reject.
Indeed it has been argued, by Lon Fuller in a famous debate with H.L.A. Hart (Harvard Law Review, 1958), that a jurisprudence which generates outcomes offensive to justice doesn't deserve the name of law. It may come fully equipped with procedures, tests, distinctions and all the other marks of law, but it isn't law because, at its heart, it isn't good. The question Fuller and Hart debated is whether Nazi law was law. The positivist Hart said that law and morality are two distinct registers and that a system of law could be procedurally legitimate and at the same time rest on an immoral foundation. Fuller replied by distinguishing between "mere order" and "good order," and declared that a legal system "which clothes itself with a tinsel of legal form can so far depart from . . . the inner morality of law itself that it ceases to be a legal system."
It is into these thickets of controversy that Obama steps (as he well knows) when he elevates empathy -- a fellow feeling for those who have long been on the wrong end of the stick -- above "abstract legal theory," and insists that in addition to being legally competent the judge he approves must have justice in his or her heart. This is the criterion he applied when voting against Chief Justice Roberts. "Legal process alone," he said in explanation of that vote, "will not lead you to a rule of decision." Another way of putting this would be to say, it's not really law if it's merely legal.
But is there such a thing as "merely" or purely legal? Is there such a thing as the system of law? Is law a self-contained body of thought that rests on its own bottom? Or is what we call law inevitably influenced and even structured by forces and imperatives it does not contain? To put it in a nutshell, is law autonomous? Should it be?
Law would be autonomous if its operations proceeded without reference to norms that reside elsewhere -- in religion, morality, economics, social justice, etc. This would not mean that in its unfolding law never made mention of facts and concerns found in the world outside it; only that when those facts and concerns came into the legal landscape, they were recast in legal terms rather than in the terms that belonged to the enterprises from which they were borrowed.
Insanity, for example, is a concept that has a home outside the law. But when lawyers (as opposed to psychiatrists) invoke it, they turn it into something that links up with legal categories. It is defined as an inability to tell right from wrong, not a definition that would recommend itself to the medical community. The law is autonomous when it turns everything into its own stuff so that even when it incorporates concepts from elsewhere they are emptied of their empirical content and given the content the law's internal imperatives require.
This is precisely what the critics of law's autonomy (or of its claimed autonomy) complain about. A legal system that first formulates its own special vocabulary (consisting largely of entities no human eye has ever seen) and then shoehorns everything it encounters into that same vocabulary will never touch down on the ground, will never respond directly to the urgencies and needs of real people living real lives.
In his ferociously funny essay "Transcendental Nonsense and the Functional Approach" (Columbia Law Review, 1935), Felix Cohen laments "the divorce of legal reasoning from questions of social fact and ethical value." Legal concepts, he says scornfully, are "supernatural entities which do not have a verifiable existence except to the eyes of faith," and rules of law "which refer to these legal concepts, are not descriptions of empirical social facts . . . nor yet statements of moral ideals, but are rather theorems in an independent system."
The law, Cohen concludes, should not be a self-referring construct of "pure geometry," but a "social process" that deals with "human activity, with cause and effect, with the past and the future." A responsible jurist will be one who says, "This rule leads to the following results, which are socially undesirable for the following reasons." In short, a responsible judge will have empathy.
Whereas Cohen rejects a legal system that is without social and ethical content, other critics argue that no such system is possible, and that what Cohen calls transcendental nonsense is in fact full of the sense sponsored by the powers that be. The myth of a law distinct from substantive value is used to smuggle in the values of the ruling class. "Lawyers, judges and scholars," says Joseph Singer, "make highly controversial political choices, but use the ideology of legal reasoning to make our institutions appear natural and our rules appear neutral" ("The Player and the Cards," Yale Law Journal, 1984). And law schools, according to Duncan Kennedy, play their part by providing "training for willing service in the hierarchies of the corporate welfare state" ("Legal Education and the Reproduction of Hierarchy," Journal of legal Education, 1982).
This is not very far from Obama's critique of formalism as a "cramped and narrow" way of interpreting the Constitution "in which the . . . courts essentially become the rubber stamps of the powerful." A better way of interpreting, he believes, would be to begin with the conviction that "the courts are the refuge of the powerless who often lose in the democratic back and forth." Therefore we need judges "who have the empathy to recognize what it's like be a young teen-aged mom; the empathy to understand what it's like to be poor, African American or gay."
An Obama judge will not ask, "Does the ruling I'm about to make fit neatly into the universe of legal concepts?" but rather, "Is the ruling I'm about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?" Obama's critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.
This is the answer to Dahlia Lithwick's question, what's wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it's not law, and if it is made law's content, law will have lost its integrity and become an extension of politics. Obama's champions will reply, that's what law always has been, and with Obama's election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: "The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions."
And so it goes in an endless round of claims, counterclaims, accusations and dire predictions. My own prediction is that we will hear it all again once Obama announces his nominee and the drama of the confirmation hearings begins. Must-see T.V.