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.”