Orin's recent post helpfully clarifies some of the relevant issues in the debate over judicial "empathy." I completely agree with Orin that some cases require judges to be aware of a litigant's mental state. For example, a case alleging illegal intentional race discrimination requires judges to assess evidence indicating whether or not the defendant really did intend to discriminate. As Orin notes, hardly any one denies this.
I. Empathy Goes Beyond Merely Understanding a Litigant's Mental State.
Many of those advocating "empathy" as a tool for judicial decision-making define the term far more broadly. "Putting oneself in another's shoes" - the conventional metaphor for empathy - entails a lot more than simply knowing what the other person thinks or feels. For example, I am aware that a committed anti-Semite hates and fears Jews. In that very limited sense, I might be said to empathize with him. However, I cannot feel his emotions as if they were my own, because they diverge too much from my worldview. Although I can understand the content of his beliefs, I cannot really put myself in his shoes.
To take a more immediately relevant example, consider the Lily Ledbetter case, which many advocates of judicial empathy point to as the paradigmatic instance of insufficient empathy by the conservative justices. Surely those justices understood that Ledbetter felt frustrated and perhaps angry when judges ruled that her sex discrimination claim was barred by the statute of limitations. They also likely realized that she believed she was the victim of an injustice. One would have to be a fool not to see these things.
When critics of the Ledbetter decision claim that the conservative justices lacked "empathy" for the plaintiff, they mean not that the conservative justices were unaware of her feelings, but that they failed to identify with them sufficiently. As Barack Obama recently put it, "the quality of empathy" he looks for in judges includes "understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes" [emphasis added]. Advocates of judicial empathy claim not only that judges sometimes must determine the mental states of litigants, but also show sympathetic "identification" with them. At the very least, they want judges to put themselves in litigant's shoes to a far greater extent than merely knowing what the litigants think or feel. And they want that kind of empathy to be a basis for judicial decisions in some important cases.
It is this position that I consider vulnerable to the objections I raised in my Los Angeles Times exchange with Erwin Chemerinsky. In my view, reliance on empathy tends to introduce dangerous biases and often leads to less accurate assessment of relevant empirical questions than the use of more analytical methods. I consider it inevitable that most judges - and most people - feel greater empathy for those most like themselves. Thus, abjuring reliance on empathy is essential if judges are to make impartial decisions, as is their duty in a legal system based on the rule of law.
II. Empathy and the Assessment of "Real-World Impact."
Finally, I may disagree somewhat with Orin's claim that the use of empathy is needed in cases where "[t]he applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people." If Orin means merely that such assessments sometimes require knowledge of those people's mental states, I don't think there is any dispute between us. But, as discussed above, that is not the kind of "empathy" that Obama and others have in mind.
"Assessments of real-world impact" do not require the use of empathy in the broader sense meant by Obama. To the contrary, such assessments are better conducted by means of systematic analysis that abjures personal identification with the litigants as much as possible. For example, social scientists often conduct rigorous studies that usefully analyze the effects of policies on people whom they do not know and have little empathy with. By contrast, as I tried to explain in the LA Times debate, relying on empathy is likely to actually blind judges to the less immediately obvious indirect effects of a decision.
In sum, no serious commentator denies that judges sometimes need to be aware of the mental states of litigants. The question is whether they should base important decisions on a form of "empathy" that goes well beyond that.
UPDATE: Just to be clear, it is not my purpose to defend the Ledbetter decision. I don't know enough about the relevant legal issue to have any strong opinion on whether it was correctly decided. I do think that it should have been decided without relying on empathetic identification with either side.
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