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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A Broader Question From a Questionable Case

I am not sure just what it is with the Thomas More Law Center, but since Ed Thompson left, they’ve done some strange things. First was a silly law suit challenging the TARP act because some of the recipients had shariah-compliant lending programs. Now, it has filed suit complaining that the Department of Homeland Security report on the “dangers” presumably presented by some ill-defined assembly of right-wing groups violates their First and Fifth Amendment rights.

To be sure, the report is an embarrassing piece of work, essentially saying that there are right-wing groups who feel very strongly about a number of issues and, even thought there is no evidence that any of them are planning any violent or unlawful activity, . . . you know, they could because there has been domestic terror associated with the right wing in the past. What is particularly disturbing about the report is the broad brush with which it treats “right-wing” groups. It takes little or no care to distinguish groups that are seen to be, in the report’s words “anti-government” or opposed to “abortion” or “immigration” from those unnamed and, apparently, so far nonviolent groups that might suddenly become terrorists. There is little guidance for law enforcement agencies receiving the report. It conveys little information other than the supposed need to monitor “right-wing” political groups. It certainly could move some official somewhere to questionable conduct, as it apparently already has.

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Okay, Judge, You Hit Your Number or Die in This Room*

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

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