Elena Kagan: Would she embody empathy as a Supreme Court justice?

President Obama praised Elena Kagan for her intellect and passion, but he only hinted at the quality he earlier deemed an essential ingredient in a Supreme Court justice: empathy.

Silence can be telling. Look no further than the remarks President Obama made this morning on the qualities that will make Elena Kagan an outstanding Supreme Court justice. Those that you would expect to hear from any president – “independence,” “integrity,” “fair-mindedness” – were all there.

Missing, however, was the quality that Mr. Obama last year called “an essential ingredient for arriving at just decisions.” That quality is empathy, a word the president has used to call attention to the limits of the written law in difficult cases and to the powerful role experience can play in deciding them.

Obama first praised the importance of judicial empathy during the nomination hearings of Chief Justice John Roberts. Then the junior senator from Illinois, he was prompted by Mr. Roberts’s opening statement, which attempted to defuse speculation about how his personal politics might color his decisions by likening the work of a judge to that of a baseball umpire.

“Umpires don’t make the rules,” Roberts announced, “they apply them.”

Judge Richard Posner, a Reagan appointee and perhaps the most celebrated mind on the appellate bench, said that neither Roberts nor “any other knowledgeable person” believes that the rules Supreme Court justices apply “are given to them the way rules of baseball are given to umpires.” Obama certainly did not. However, he did grant that “95 percent” of the cases that come before the court could be settled by “basic precepts” that any skilled judge adheres to, including respect for precedent, judicial modesty, and impartiality.

That leaves 5 percent, the “truly difficult” cases where a justice has to resolve some ambiguity in the law and cannot rely on “basic precepts” alone. When confronted with such cases, justices have often looked beyond the law to the lessons of experience.

Obama himself has approvingly cited Oliver Wendell Holmes’s famous dictum, “The life of the law has not been logic; it has been experience.” What Holmes meant is that, from the vantage point of history, the development of the law is not a matter of some mathematical theorem slowly and inexorably yielding its logical conclusion. Rather, it is the fitful work of human hands, of the men and women who create and interpret the law struggling to adjust it to the evolving imperatives of everyday life.

This is not pretty work.

It certainly lacks the elegance and analytical certainty of a mathematical proof, so it is not surprising that many people regard experience as too vague and unreliable to be of proper use to a judge. Yet justices like James Wilson, Benjamin Cardozo, and Sandra Day O’Connor, in addition to Holmes, have all pointed to experience as providing the kind of wisdom a judge must rely upon in cases where the written law falls short.

In fact, Justice O’Connor has gone so far as to express her belief that “At the end of the day, a wise old man and a wise old woman reach the same judgment.”

The key word here is “old,” for it highlights O’Connor’s faith in the experience that comes with age, and the wisdom it provides for.

Obama puts his faith in the type of experience that comes from empathizing with others, particularly those whose lives are different from our own. Empathy, as the president defines it, is not simply “a call to sympathy or charity,” it is “something more demanding, a call to stand in somebody else’s shoes and see through their eyes.”

As applied to the Supreme Court, the practice of empathy shapes how a justice resolves disputes involving affirmative action, abortion, gun rights, campaign finance reform, and other “truly difficult” cases where the law presents more than one option for adjudication, or no clear option at all. Moreover, like O’Connor, the president suggests that the experience of practicing empathy, of seeing the world through the eyes of other people, lends itself to a shared wisdom, one in which we are “forced beyond our limited vision” in order “to find common ground.”

Not everyone is so confident, most notably the president’s first nominee to the Supreme Court bench, Sonia Sotomayor. Her hope that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” came in response to O’Connor’s views. It reflects Justice Sotomayor’s skepticism that either the perspective of age or the practice of empathy can ever take us far beyond the limits of our own experience.

This is not to say that experience is irrelevant to deciding the “truly difficult” cases; rather, experience ought to be measured across the bench. The need is not for the special experience of a single justice, but for nine justices with a variety of life experiences that, together, best reflect the diversity of the American people.

The president sees things differently. He places enormous faith in the experience of seeing the world through the eyes of others, a faith he came by as the son of so many different worlds. His struggle to understand his own convoluted identity convinced him that striving for empathy not only makes us more humane and tolerant, it also imparts a special kind of wisdom that is uniquely suited to living in and deciding law for a country as rich and diverse as our own.
Senate Republicans are not convinced. They made clear in the Sotomayor hearings that they regard empathy as not synonymous with wisdom, but with partial justice and judicial activism. Their objections help to explain why President Obama’s faith in empathy went unmentioned this time around.

Yet the President did gesture to that faith at one point, this morning, in his invocation of Justice Thurgood Marshall. Kagan was a law clerk for the civil rights icon in one of his final years on the bench, and she has said that the most important thing he taught her had nothing to do with the technical application of the law. Rather, it was the recognition that “behind law there are stories – stories of people’s lives as shaped by law, stories of people’s lives as might be changed by law.”

The willingness to listen to the stories of people's lives, the wisdom to see how law might change them, and the courage to act on that knowledge are all what make empathy such an abiding virtue and a valuable addition to the court.

Today, President Obama only hinted at this lesson. Let us hope a Justice Kagan embodies it.

John Paul Rollert teaches business ethics and leadership at Harvard Summer School. He is pursuing a JD at Yale Law School and a PhD at The Committee on Social Thought at the University of Chicago.


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