Empathy Versus Law

Weekly Editorial — Posted on May 28, 2009

(by Walter Williams, HumanEvents.com) — President Obama’s articulated criteria for his nominee to the U.S. Supreme Court is: “We need somebody who’s got the heart to recognize — 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. And that’s the criteria by which I’m going to be selecting my judges.”

What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only; namely, he is a referee. There is nothing complicated about this. A referee’s job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let’s look at it using this year’s Super Bowl as an example.

The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals’ last championship victory was in 1947 when they were based in Chicago. In anyone’s book, this is a gross disparity. Should the referees have the empathy to understand what it’s like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You’d probably remind him that the league makes the rules, not referees.

I’m betting that most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. Moreover, I believe that most people would agree that referees should evenly apply the rules of the games even if they personally disagreed with some of the rules.

The relationship between Supreme Court justices and the U.S. Constitution should be identical to that of referees and football rules. The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions. That’s why Lady Justice, often appearing on court buildings, is shown wearing a blindfold. It is to indicate that justice should be meted out impartially, regardless of identity, power or weakness. Also, as Justice Oliver Wendell Holmes said, “Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.” The legislative branch makes the rules, not judges.

Interventionists often make their case for bending the rules based on the unfairness of outcomes such as differences in income, education and wealth. After all, how can the game of life possibly be fair when some people’s yearly income totals in the hundreds of thousands, even millions of dollars, while many others scarcely earn twenty or thirty thousand dollars? Some people find that argument persuasive but it’s nonsense. Income distribution is an outcome and fairness cannot be determined by outcomes. It’s the same with football. The Steelers winning six Super Bowl titles and Arizona winning none is an outcome and cannot be used to determine football fairness. Fairness in either case must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, any outcome is just and actions based on empathy would make it unjust.

Dr. Williams is a nationally syndicated columnist, former chairman of the economics department at George Mason University, and author of More Liberty Means Less Government.

Questions

1. How does Walter Williams explain the role of a U.S. Supreme Court justice?

2. Do you think Dr. Williams make a strong case for his assertion about the role of a Supreme Court justice? Explain your answer.

3. Do you agree with Dr. Williams? Explain your answer.

Background

On the Role of Judges:

Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call 'em as they see 'em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is "favored," without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)
"The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy. A judge can have his or her own opinions, even strong ones, and still read the law neutrally. Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators." Sean Rushton, Committee for Justice Executive Director, from the WashingtonPost.com.
"One of the big confusions in the...Senate fight over the confirmation of judicial nominees is that this is an issue about 'liberal' judges versus 'conservative' judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge's own philosophy...Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose." Thomas Sowell, Hoover Institution
As Ronald Reagan once noted, "[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative." For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning. Rather than scrutinizing judicial nominees based on their perceived political leanings, the ... president should appoint judges who apply the law regardless of their own policy preferences. (from "Misunderstanding the Role of Judges" by Deborah O'Malley)

NOTES ON PROCEDURE FOR NOMINATING AND CONFIRMING FEDERAL AND SUPREME COURT JUDGES:
*The President nominates a person, and sends the name to the Senate Judiciary Committee,
*The nominee is questioned by the Senate Judiciary Committee (confirmation hearings). If confirmed,
*The name goes to the Senate for a vote.
*If the full Senate votes to confirm a nominee by 51 votes (a simple majority) or more, the nominee is confirmed.

On the types of cases the Supreme Court hears:
Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. ... (from bensguide.gpo.gov)