Logic and Empathy

Posted on Categories Constitutional Interpretation

I might have commented on Ed Fallone’s post regarding the role of logic in Supreme Court decisions, but there is nothing in the post with which I disagree. But I do think that it raises two additional issues, one of which has been the subject of much recent popular conversation.

President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.

But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.”

It seems to me that, while empathy may not be the most important quality in such an enterprise and emphasizing it presents certain risks to the rule of law, it is not wholly irrelevant.  For instance, in applying the Fourteenth Amendment’s guarantee of equal protection, a certain degree of empathy with the position of African-Americans facing a legal regime of “seperate but equal” may be relevant.  

Nevertheless, I think the President’s emphasis on empathy is problematic. The first concern is that, as presented, the empathy that he called for seemed to be ideologically slanted, singling out those dispossessed groups that the progressive political tradition has historically regarded as uniquely disfavored and as needing special protection from and intervention by the state.

But, more fundamentally, it calls into question adherence to Ed’s formulation of what constitutes legitimate consitutional decision-making.  If empathy is defined as a concern for a particular result in the matter at hand, the logical application of first principles, structure, and prior decisions is threatened. If empathy is defined as one tool in the interpretive process, the devil is in the details, and it is here that we arrive at what I think is the second point raised by Ed’s post.

Much of the disagreement in constitutional interpretation has to do with how one discerns first principles and constitutional structure. An unfair caricature of the “conservative/restraintist” view, recently indulged by the formerly conservative Doug Kmiec, is that public meaning “virtually delivers itself like the morning paper.” I know of almost no one who believes that. An unfair caricature of the “liberal/activist view” is that it can be anything. I know of almost no one who believes that.

But, as unfair as these caricatures may be, they do suggest something about the difference of opinion between those who advocate more or less restrained interpretive philosophies, and that difference itself bears upon the role of “empathy” in judicial decisionmaking. The more elastic these first principles are thought to be or the more discretion is recognized in the ways in which they are discerned, the greater will be the role of empathy and the political and policy choices that are necessary to translate empathy into action.

6 thoughts on “Logic and Empathy”

  1. I suppose that a focus on the internal logic of a Supreme Court opinion allows observers to zero in on the opposing views of first principles. It clarifies things, but it doesn’t resolve anything, as you rightly point out.

    However, I am not sure that “empathy” is in conflict with logic, as your post seems to suggest. A lot of people are reading a lot into that one word. First of all, I am not sure that President Obama was talking about empathy in the context of constitutional interpretation. If anything, I think that he may have had in mind the Supreme Court’s hostility towards private rights of action and the manner in which a majority of the Court (including some liberals) have narrowed the ability of plaintiffs to use legal remedies created for them by Congress. Second, even if the President was referring to questions of constitutional interpretation, there is the natural law aspect of the Constitution that certainly calls on the Court to empathize with abstract ideas such as human dignity (the right of people subject to government deprivation to have their voices heard) and human suffering (conditions of confinement). I may be naive, but I just don’t see “empathy” as a stalking horse for a pre-determined liberal view of constitutional first principles.

  2. I think empathy is a wonderful thing for trial-level judges to have. They are the ones making individualized decisions, that have the discretion to deal with people based on gut feelings and individual circumstances. The same goes for beat cops who have discretion to arrest and DA’s who have discretion to prosecute.

    I think it’s quite inappropriate for high-level decisionmakers, however. Hard cases make bad law, usually because the circumstances seem so awful that “something must be done.” When that “something” is done, it’s rarely appropriate in all or even a majority of cases. See, e.g., the Terry Schiavo mess. Leave the individual exceptions to be made by the first-line contacts, not the high-level policy makers.

  3. The idea of empathy is predicated on a unique human capacity to participate in another person’s ideas or feelings. Perhaps categorical logic might be devoid of empathetic tendencies; however, with the advent of propositional and modal logic (elegantly presented by Russell in his classic paper “On Denoting”) we can refer to the “golden mountain.” It seems in keeping with the first principles of the modern logic that we can seriously refer to “empathy in judicial decision-making at the highest rank.”

  4. The reference to Bertrand Russell and the connection between logic and language is apt. I must confess, however, that at this point the conversation begins to get a bit over my head. Perhaps someone else is more qualified to pick up on Benjamin’s point.

  5. My earlier reference to Russell’s early work on logic and language was meant to diffuse the controversy (i.e., by offering clarification that in post-Aristotelian logical systems it is possible to claim that “empathy in judicial decision-making at the highest rank” at least has a type of referent). I did not mean to be vague; however, it seems that perhaps what might be helpful is a fuller treatment of the concept of “empathy.” Walter E. Williams (an economics professor from George Mason University) makes an interesting claim that:

    “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.”

    I say that this is an interesting claim because the idea of “empathy” is not devoid of logic and “objectivity.” It seems to me that in the best of possible logical worlds many important events take place (important in that they sometimes change the moral landscape of an entire civilization) through invoking a diverse, complex sense of “empathy.”

    In his dialogue, “Euthyphro,” Plato provides us with the least empathetic character (i.e., Euthyphro) who sees himself as bringing none other than his own father to justice. Socrates exposes Euthyphro’s sense of justice as shrouded by logic and yet he fails to provide the “gadfly” with a defensible objective meaning of justice.

    Judges are people. The stakes are higher in judicial decision-making at the highest rank, but that should not diminish the necessity to have the moral stamina to explore a higher definite description of “empathy.”

    When asked what trait made him special (thus, enabling him to make his inimitable contributions to science), Darwin replied that he was good at balancing his checkbook (i.e., keeping strict details of his household finances). This trait became a transferable skill that helped produce incredible change. My question is, why is empathy not a transferable skill?

  6. British cultural studies scholar Stuart Hall desperately tried during the 1980s to understand the “logic” of Thatcherism. Hall didn’t want to dismiss it as irrational or false, but he concluded the principles, social observations, and pronouncements were not logical in the sense of being formally entailed to one another. If there was a logic to it all, it was best understood as a discursive logic, that is, as a looser way of connecting various statements. If you want to understand the “logic” of Thatcherism, Hall said, you will get closer to that understanding by thinking in terms of the logic of a dream rather than the logic of philosophical investigation. The persuasiveness of Thatcherism derived from its capacity to condense and display symbolic constructs in proximity to one another.

    Something similar can be said about the legal “logic” of which we are so fond. The classic legal syllogism (rule, facts, holding) does not work mechanically to produce “correct” or even “good” answers. The major and minor premises in the syllogism are variable and often essentially narratival. Like the propositions of Thatcherism, the premises are not formally entailed to one another in ways that would satisfy traditional logicians. That having been said, we would be foolish to underestimate the power of a well crafted legal syllogism. It is a form of rhetoric at the center of both American law and much of American politics.

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