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.”