Judicial empathy

Judicial empathy refers to a way of ruling on cases in which a judge's personal feelings of empathy toward those involved affect how the judge decides the case. Implicitly required in judicial empathy is not only an understanding of the litigant's mental state but also a showing of identification with the litigant. Judicial empathy stands in contrast to more strict readings of statutes and the Constitution.

Arguments for judicial empathy

President Barack Obama

In a 2007 speech before members of Planned Parenthood, then-presidential candidate Barack Obama described his ideal Supreme Court justice as somebody who has "got the heart...the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old."

After Associate Justice of the United States David Souter announced his retirement, Obama further mentioned his stance on judicial empathy by saying: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It's also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation."

Katherine Jack

Katherine Jack, an attorney for National Advocates for Pregnant Women, wrote a column about the pros of judicial empathy following the 2009 case AT&T Corporation v. Hulteen about pregnancy discrimination. Ms. Jack argued that, in light of support for judicial empathy, the U.S. Supreme Court has never fully recognized or protected the rights of pregnant women. She stated: "The Hulteen majority opinion acknowledged that a company's failure to credit women for pregnancy leave taken today would be unlawful gender discrimination under the Pregnancy Discrimination Act (PDA). However, the court found that AT&T's practice was part of "bona fide seniority system" that, when adopted, "as a matter of law, as Gilbert held, was not gender-based discrimination." Only with the passage of the PDA were employers prohibited from discounting pregnancy leave as working time. Since pregnancy discrimination did not violate U.S. law before the PDA, the court held that AT&T was free to carry forward its current calculation of pension benefits.

Arguments against judicial empathy

Thomas Sowell

In the wake of President Obama's expressed desire to nominate a justice with empathy, economist Thomas Sowell warned against the eventual repeal of the notion of equal justice before the law. He wrote:

“

Appoint enough Supreme Court justices with 'empathy' for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees 'equal protection of the laws' for all Americans. We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.

”

Senator Jeff Sessions

In a May 7, 2009, interview with the National Journal, Alabama U.S. Senator Jeff Sessions (R) was asked about judicial empathy. He stated:

“

I don't know what he means. And it's dangerous, because I don't know what empathy means. So I'm one judge and I have empathy for you and not this party, and so I'm going to rule for the one I have empathy with? So what if the guy doesn't like your haircut, or for some reason doesn't like you, is he now free to rule one way or the other based on likes, predilections, politics, personal values? The core strength of American law is that a judge puts on that robe and he says, 'I am unbiased; I'm going to call the balls and strikes based on where the pitch is placed, not on whose side I'm on. I don't take sides in the game.' … Now, President Obama said some other things that are classical independence of the judiciary, and that they should follow the Constitution.

”

Additional reading

• Lee, R., Judging Judges: Empathy as the Litmus Test for Impartiality, Cinncinnati Law Review (2014)
• Colby, T., In Defense of Judicial Empathy, Minnesota Law Reivew (2012)
• Glynn, A. & Sen, M., Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?, American Journal of Political Science (2015)
• The New York Times, "Empathy and the Law," May 24, 2009
• The Weekly Standard, "The Problem with Judicial Empathy," June 8, 2009
• The Nation, " The Importance of Judicial Empathy," August 5, 2013

See also

• Index of Terms
• Judicial philosophy