Monday, June 01, 2009

Empathy, Equity, and the Wise Latina Judge: Sotomayor and the Supreme Court Oath of Office

The conservatives may have point about Sonia Sotomayor. Some pundits have pointed out that the oath of office for the Supreme Court seems to dismiss the kind of judicial attitude espoused by Sotomayor and Obama. That is, it seems to disallow "empathy" as a judicial tool, and certainly prohibits anyone from claiming that certain "standpoints" (perhaps such as those by a "wise Latina judge"--that now infamous phrase of Sotomayor's) ought to be epistemically privileged in legal decision making. Here is the text of the oath:

“I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”

One commentator (who has a philosophy degree from Stanford!) suggests that these words immediately disqualify Sotomayor from the Supreme Court. According to Bryan Fischer, she has said that she will take into account "persons" and will rule based on factors such as empathy with the identity of the petitioners in court, rather than strict impartiality as the oath calls for.

I don't know much about the history of the word-smithing behind this oath but the phrase "...I will administer justice without respect to persons," is a curious one. Given the clause that follows ("and do equal right to the poor and to the rich"), the phrase might suggest that a judge is not to allow the identity, or reputation, or influence of an individual in a case, to sway an understanding of the appropriate application of the law. This would be a general warning against bias or favoritism.

Yet, commentators are taking this wording to suggest that "impartiality" means not taking into account any particularities of a person's background or history. In laying out his criteria for choosing a justice, Obama said he thought we needed:

“... somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

Jonah Goldberg, of The Nation Review, calls this deeply offensive, i.e, racist, and nonsense:

"The reasoning here is a riot of dubious assumptions. Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. “I would hope,” Sotomayor said in 2001, “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How’s that working out for liberals?"

These views seem to imply that the administration of justice is a mechanical thing. Law is like an algorithm: anyone can plug in a few variables and get the same answer. Indeed, some commentators are now using former Justice O'Connor's saying that a wise man and wise woman should come to the same conclusion as some kind of repudiation of Sotomayor and Obama.

If this is how the oath of office is to be interpreted, then I say so much the worse for the oath. It seems to assume a very simplistic idea of legal decision making that ignores a fundamental virtue of jurisprudence: equity.

As Plato and Aristotle understand it, equity is a kind of correction to the written law administered by real live judges.

In The Statesman, Plato writes against the idea of the law as some of kind of system of rules that can be applied like a logical proof:

"The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. No art can lay down any rule which will last forever...."

Equity, then, is an art (or more accurately, the practical wisdom) of learning how to take into account certain details of a particular case and consider them relevant in deciding how a law applies. It is an art in the sense that it is not a codified science, but more like a knack, a practice, that seasoned practitioners know how to do.

Aristotle calls equity "justice that goes beyond the written law" and offers an example: Imagine a law that prohibits the infliction of wounds with iron weapons. X strikes Y while X is wearing an iron ring. In addition to the general assault, shouldn't X face of charge of inflicting a wound with an iron weapon? Aristotle says this is a case for equity--learning to see the case in a wider perspective that takes into account: "not to the action itself, but to the moral purpose; not to the part, but to the whole; not to what a man is now, but to what he has been, always or generally." Clearly, justice, according to Aristotle, can only occur if we have some sense of the people we are dealing with.

An oath is not necessarily a job description (even though federal officials can be charged with treason or high crimes for violating their oaths). But it seems that, in the case of the Supreme Court oath of office, we ought to reconsider whether we are committing judges to an unsophisticated kind of jurisprudence. We should recall Cicero who said that only "the crowd" identified law and justice with the written decree; true law has to do with reason and the wisdom that comes from experience interacting with persons in the real world.

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At 6:03 PM , Anonymous Brian Berkey said...


I agree that if the correct interpretation of the oath is one on which making legal decisions involves nothing more than applying some sort of legal algorithm to particular cases then we would do well to essentially ignore the literal meaning of the oath. But no one could plausibly interpret it in this way anyway, since what is often at issue in Supreme Court cases in particular is the meaning of an existing law or legal provision or constitutional phrase. And nothing other than an application of a previously agreed upon meaning of such laws/provisions/phrases could plausibly serve as the algorithm to be applied. It's true that conservatives sometimes talk as though this is their understanding of what a judge is supposed to do, but this just shows that they are either fundamentally confused or (what I suspect is more often the case) intellectually dishonest.

A more reasonable criticism of Sotomayor's now famous quote, and one that I sympathize with to some extent (though I'm not convinced by the meager evidence provided by that single quote), is that it suggests that she believes that being a member of a particular gender or racial group is itself an epistemic resource that provides some people with a greater ability to discern the correct judgment to make about legal (and presumably other) issues.

We can dispute with the conservatives the role that precedent should play in Supreme Court decisions (of course they don't universally value precedent - e.g. Roe v. Wade), but presumably it should play some role, and this will limit the role that empathy (though not equity) can play in determining appropriate decisions. But some cases, importantly, lack relevant precedents, and I certainly think that it is important, perhaps in particular in these cases, that the judges deciding them are able to empathize with the parties who stand to lose depending on the outcome of the cases. And empathy for those who are already disadvantaged in our society is often lacking among judges, to the detriment of the victims of injustice.

Obama's quote that you cite does not seem to imply, however, that the ability to empathize with, e.g. the poor or African-Americans or the disabled requires actually being a member of the relevant group. And so long as we don't make the mistake of thinking that it does, the view that good judges have the capacity to empathize with those groups seems to me correct, and Goldberg's criticism of it irrelevant.


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