Logic and Empathy

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.”

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The Importance of Being Logical

I went to see the Star Trek movie this past weekend with my twelve-year-old son, Andrew.  He was the one dressed in full Klingon regalia (true story).  The star of the movie is undoubtedly everyone’s favorite Vulcan, Mr. Spock.  As you will recall, Spock is the character who always insists on behaving logically.  Seeing the movie made me reflect on legal education and the importance of being logical.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions.  Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making.  They begin the semester with the assumption that the members of the Court merely vote their ideologies.  As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner.  However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class.  Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects. 

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Tribe on the Use of Foreign Law

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution.  One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation.  I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005).  Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants.  In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things.

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