How Empathetic Judges Can Hurt People More Than They Help Them
Echoing a theme I’ve written on before, law professor John Hasnas makes a devastating case against one kind of judicial empathy:
Clearly, a good judge must have “an understanding of how the world works and how ordinary people live.” Judicial decision-making involves the application of abstract rules to concrete facts; it is impossible to render a proper judicial decision without understanding its practical effect on both the litigants and the wider community.
But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another’s emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?
Frederic Bastiat answered that question in his famous 1850 essay, “What is Seen and What is Not Seen.” There the economist and member of the French parliament pointed out that law “produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.” Bastiat further noted that “[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.”
This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about — that is, for those who are “seen.”
One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.
One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.
One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.
In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.
The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.
This isn’t to say that the quality Hilzoy seeks in this post is undesirable in a justice — I just don’t think empathy is the right word for it (though I’m struggling to figure out what the right word for it is). Also note that given the role of the Supreme Court, whose decisions affect a small number of litigants directly, and countless millions indirectly, the kind of empathy discussed above is a particularly damaging quality for its judges to exercise.
I don’t understand “empathy” in the judicial context to mean anything but a judge occasionally saying “you know, the law is simply wrong here – it creates an injustice, not justice.” Which is exactly what conservatives wanted to be ruled in Ricci.
So what the f*** are they complaining about? Oh, right – they are who we thought they were.
— Chet · Jun 2, 05:55 PM · #
I cannot see that the Hasnas argument is a “devastating case” against judicial empathy. He claims that “an empathetic judge (would tend to base his or her decision) on how the people directly affected by the decision would think and feel.” That seems fine to me; thoughts and feelings are part and parcel of “how the world works and how ordinary people live”.
He is wrong to say that an empathetic judge will ignore the law in order to “(relieve) the plight of those they can see”. Consider the Judgment of Solomon. Quintessentially empathetic, and as hard edged (excuse the pun) as any decision. Empathy is a talent to be used, not evidence of a crippled intellect nor of faithlessness to a judges oath.
Furthermore, the overarching point about unintended consequences seems unrelated to empathy. Any decision can produce unintended consequences. Ignoring the consequences to the “seen” does not change that. Whether those consequences are physical, intellectual or emotional does not change that. Unintended consequences are an important consideration in judgment as well as legislation, but they have no special relationship to empathy.
— Bill · Jun 2, 08:51 PM · #
Well, the mere fact that one possesses compassion and empathy doesn’t mean that one is governed by them. Ideally the judge would have compassion and empathy for all affected parties, tempered by wisdom and foresight.
— kenB · Jun 2, 08:57 PM · #
I can’t say that I disagree with Conor’s point—for trial judges. They are immersed in the litigants’ problems, often at the expense of the legal rules used to resolve these problems.
Things are very different at the appellate level. The case comes in dry: on the record. It’s almost all paper, except for about a half hour of oral argument. (Lawyers say that you cannot win a case in oral argument: you can only lose one.) An appellate judge faces the opposite risk: completely losing the point of the underlying dispute to abstract issues of rule-integrity and administrability.
My conclusion? Trial judges should be more remorseless than most people, because they preside over courts of law, not justice. Appellate judges need more empathy than most judges, because they preside over courts of law, not logic.
— Joe S. · Jun 2, 09:01 PM · #
I just don’t think empathy is the right word for it (though I’m struggling to figure out what the right word for it is).
What Hilzoy is defining is a gestalt shift from one perspective to another — in effect, the ability to ‘alt-tab’ through relevant apperceptions.
Not an easy trick, that. That’s why it’s nice to have different types of people on the Supreme Court, just to make sure.
— Sargent · Jun 2, 09:06 PM · #
My major gripe with empathy is that it’s not really within the judge’s ability to determine the underlying facts accurately.
Before the judge decides whose fault it was that the contract was broken, we need trials, testimony, documents, etc., and even then, we may require the judge to turn the question over to a jury rather than deciding it herself.
But if the judge is tasked with who morally deserves to take the loss from the breach of contract, then all the briefs open with two or three pages about how mean Acme is to other suppliers, and how WidgetCo is a small family business, the proceeds of which go to support a local softball team, while Acme is big and heartless, and its CEO made $12 million last year. Acme has to respond that it’s quite a nice company, and that just last week it sponsored an AIDs walk, and that its diversity programs have won three national awards, and that although its CEO made a lot of money, it’s consistent with the rates paid by closely held companies, which are presumably not paying anything over market rates, and the money that WidgetCo demanded when it tried to renegotiate its contract off cycle would have necessarily been passed on to customers, many of whom are scraping to make ends meet, and have you seen the attached satellite photo of the Widget family mansion? They don’t publish their income factors, but they seem to be doing quite well too . . .
Then, since we haven’t had any kind of fact-finding process about any of the above, the Judge applies her existing bias (or life experience) to decide whether WidgetCo is nice and Acme is mean, and THEN she decides whether to allow discovery or extend the trial schedule or whatever, but she does it empathetically.
By contrast, it’s something of a relief to say “Yes, your honor, my opponent spent three pages arguing that my client is a heartless b*tch who is supposed to have shown up late for the Thanksgiving drop off just to make him suffer. We deny that, of course, but this motion isn’t about which one of them is the better person. Instead, it’s about whether they have complied with Paragraph 2D of the Separation Agreement, which says . . .”
— J Mann · Jun 2, 09:07 PM · #
KenB,
Fair point — what I mean to object to is a judge that lets that kind of empathy affect his or her decision-making, not the mere fact that they possess empathy.
— Conor Friedersdorf · Jun 2, 09:13 PM · #
There’s also signaling value in a Supreme Court that physically mirrors the people, so long as each justice is a demonstrable ‘exemplar of excellence’ in law and citizenship.
How and what a State signals — to its people, to other States — is worth husbanding.
— Sargent · Jun 2, 09:20 PM · #
Those aren’t really the questions we send to the Supreme Court, though. The whole point is that the Supreme Court resolves questions of ambiguous or unjust law. Not where the law, and who has broken or complied with it, is clear; those cases don’t make it very far.
The ultimate point is this – imagine a Supreme Court consisting of 9 white male jurists, all Catholic, all graduated from the same top law school at the top of nine successive classes, all with a decade of experience on the same Circuit Court, and all originally from nine different towns in the same county in Virginia.
Will any conservative seriously try to argue that that court would represent an equal or better class of jurisprudence than the Supreme Court we have now, or have ever had? If not, then isn’t Sotomayor’s point that a Latina woman is likely to rule better on certain issues actually not very controversial, and actually kind of obvious?
— Chet · Jun 2, 10:27 PM · #
A conservative would say that your categories are irrelevant. Furthermore, a conservative would argue, with some merit, that Sotomayor’s proven penchant for emphasizing irrelevancies makes her ill-suited for highest court in the land.
— Sargent · Jun 2, 10:48 PM · #
P.S. I went comment crazy today!
/addictive_subroutine
— Sargent · Jun 2, 10:52 PM · #
Chet,
The question of whether Judge Sotomayor’s diversity is helpful seems distinct to me from the question of whether her empathy — or empathy in judges generally — are helpful.
My position is that some kinds of empathy are desirable, but acting on other kinds can be very harmful.
— Conor Friedersdorf · Jun 3, 01:28 AM · #
Point taken, Conor. The way I see it, empathy is probably counterproductive (and exhausting!) at the level of the judge handling your traffic ticket. But at the level of the Supreme Court, empathy – the ability to perceive the effects of the law on people – really is much more important than legal experience, much in the same way that an experienced novelist no longer needs to focus as much on the rules of grammar. And can even successfully defy them, as the situation warrants.
— Chet · Jun 3, 03:25 AM · #
Chet,
I’m not very comfortable with your analogy. Supreme Court Justices are not artists. Think of it this way. When in the pursuit of brilliant prose James Joyce breaks the rules of grammar, he does it for himself alone; he has not thereby changed the rules of grammar for all who use the English language. When a Supreme Court Justice, in the interests of empathy, “defies” the rules, he or she has effectively changed the rules for everyone.
I want wise judges. I even want empathetic judges — of the sort who have the “desirable” kind of empathy to which Conor refers. I don’t want Justices who are artists with their empathy — since they may be just as readily analogized to Leo the “artist with a Thompson” as they may be to James Joyce; in other words, the kind of empathy that can artistically transcend the rule of law is just as likely to be destructive as it is to be creative.
— Kate Marie · Jun 3, 04:17 AM · #
Empathy is good and desirable in all people. But it is not more important than excellence or competence. Conservatives fear that, as with the obsession with diversity and multiculturalism, empathy has been elevated to a position above more important considerations. Empathy is a good thing, but Obama’s emphasis on it sounds like the same old affirmative action crap we’ve been hearing from his side for 30 years.
Sotomayor will most likely be confirmed, but some of her goofy ideas need to be exposed for what they are during the confirmation process. I hope the conservative Senators hit her hard for being the “racialist” she is.
— jd · Jun 3, 12:33 PM · #
There’s a common theme in all Hansas’s examples. One is asked to balance between real, near, known, seen cases that you can empathize with on the one hand and potential, distant, unknown, hypothetical cases that you can theorize about on the other hand. Sometimes empathy is incomplete. But sometimes theory is bullshit. In fact, I think Hansen proves pretty conclusively that you can call up a theoretical opportunity cost to justify any actual harm one comes across in the real world.
— Consumatopia · Jun 3, 02:08 PM · #
Chet – I totally agree that diversity is great. Some inherent bias is unavoidable, and one good way to balance out that bias is to get a good cross-sample in your decision pool.
But, I would strongly prefer that all of the diverse justices try their best to rule impartially. (Which, to be fair, is what Sotomayor is promising to do, and probably will).
As to the kinds of cases before the Supreme Court, you might be surprised. Ledbetter was the empathy cause celebre last year, and it’s a good example of empathy threatening to swamp the techical stuff.
In that case, you could be empathetic to women who might not know that they had been discriminated against, or you could be empathetic to employers asked to defend themselves against sex discrimination suits alleging that a now-dead manager secretly propositioned an employee in the late 80s. Ultimately, the underlying issue was fairly technical — Ledbetter had conceded that she knew of the discrimination back in the 90s and didn’t bring suit then, so the legal issue was limited to the “continuing offense” doctrine — but all most commentators wanted to know was whether you had empathy for women struggling in the workplace or whether you had empathy for employers asked to defend suits about conduct that occurred 25 years ago.
— J Mann · Jun 3, 04:04 PM · #
Ultimately, the underlying issue was fairly technical_
I think a better way to put it was that the underlying issue was fairly ambiguous. There wasn’t really anyway to guess whether something was a “continuing offense” without trying to guess legislative intent. Which means honestly interpreting the law meant trying to guess what Congress would have intended if Congress had forseen the type of circumstance the court was faced with. Which requires at least two levels of empathy—you’d have to empathize with how Congress would empathize with both employees and employers.
It’s not like one of the two sides in Ledbetter made no reference to the hardships faced by their clients if the opposing doctrine would become law—without empathy, there’s no way to decide a case when the letter of the law becomes genuinely ambiguous, and cases are likely to be genuinely ambiguous when they sit before the Supreme Court. Even Hasnas above is privileging empathy over strict interpretation of the law—he’s just empathizing more with the abstract constructions of his utilitarian economics than he is with the specific plaintiffs and defendants standing before the judge. (He doesn’t seem to realize that he’s doing this, but he is.)
— Consumatopia · Jun 3, 05:54 PM · #