Empathy and Catholic Legal Theory

Over at Mirror of Justice, Rob Vischer of St. Thomas wonders about the role of empathy in Catholic legal theory. After referring to Orin Kerr’s summation of different responses to legal ambiguity, Rob asks:

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

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After the issuance of a particularly fractured decision, featuring multiple concurrences and dissents, former Chief Justice Rehnquist once quipped, “I didn’t know we had that many people on our Court.”  The quote came to mind after reading a recent Supreme Court decision, Arizona v. Gant, in which Justice Scalia did something rather unusual and, from the perspective of those tasked with application of the Court’s often splintered decisions, laudatory.  He provided the fifth vote needed to produce a majority opinion, despite the fact that he did not entirely agree with the opinion he joined.

In Gant, the Court addressed the scope of the “search-incident-to-arrest” exception to the warrant requirement established in Chimel v. California.  In Chimel, the Court held that police may, incident to an arrest, search the area within the arrestee’s immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence.  In New York v. Belton, the Court extended the rule, holding that police may also search the passenger compartment of the vehicle from which an arrestee was taken.  Most lower courts understood Belton to permit a vehicle search incident to arrest even when there was no real possibility that the arrestee could gain access to the vehicle at the time of the search.  Some courts even allowed a search under Belton when the handcuffed arrestee had already left the scene.

Gant presented an opportunity to narrow this construction of the Belton rule.  

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Souter Retiring?

It is being reported today that Justice David Souter will step down at the end of this term.  Assuming this is true, I think that one of the most interesting questions in selecting his successor will be whether to follow the longstanding trend of promoting a judge from one of the nation’s intermediate federal courts of appeals.  (All of the sitting Justices were selected from the nation’s circuit courts of appeals.)  I understand the arguments for drawing Justices from the pool of sitting federal appellate judges: they have already survived rigorous vetting and Senate confirmation; with experience judging in an elite appellate court, they are uniquely prepared to hit the ground running at the Supreme Court level; and, coming from nonpartisan public offices, they may be perceived as more objective and neutral than nominees coming from the political sphere.  I think these are all good arguments.

But I also think that any collective decision-making body benefits from diversity in its composition.  For that reason, I suspect I was more sympathetic than most legal academics to the nomination of Harriet Miers.  And I took umbrage at the proprietary attitude towards the Supreme Court that some people in the world of elite federal appellate practice — both liberal and conservative — seemed to evince in their dismissal of Miers.

There is a balancing act, though: diversity should not come at the expense of competence — it is important that new Justices have the sort of training and experiences in the law that will allow them to scrutinize advocates’ arguments with rigor and to write opinions that will merit the respect of even those who disagree with the outcomes.  Some interesting places to look for such nominees besides the federal circuit courts of appeals would be state supreme courts and federal district courts.  (When was the last time a trial-court judge was promoted to the Supreme Court?)  I also like the idea of looking to a politically moderate governor or senator who has substantial legal practice experience.

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