President Obama wants a Supreme Court nominee with “empathy.” But what exactly does that mean? To answer that question, I think we need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking. Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama’s view of the Supreme Court and the role of “empathy.”
First, some background. It is a truism that some legal cases are easy and other legal cases are hard. What we mean by that is that there is a sliding scale between cases where the relevant legal materials point to an absolute answer and cases where there is a tougher call to make. Many cases are easy: the legally correct answer is 100% clear. But other cases get a little trickier. Sometimes there is at least a facially plausible argument for the weaker side. There ‘s a stronger side and a weaker side, but the issue isn’t 100% clear; You might call the balance 90%/10%. instead. And sometimes the case is pretty tough, with an honest and careful survey of the legally relevant materials making for a just slightly stronger case on one side and a just slightly weaker case on the other. You might call that balance 55/45. And then there are some cases for which the legally relevant materials are in exact equipoise: The balance is exactly at 50/50, with no side being stronger than the other.
I think there are two different ways to deal with this kind of legal ambiguity. One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage. If a case is 55/45, them there is a correct answer, because 55 is greater than 45. The position with the greater support in the legally relevant materials wins. Of courser, there may in fact be cases that are genuinely 50.000/50.000, and in those cases, perhaps the judge can pick the side. But those cases are very rare: Even in the hard cases, there is usually one side that emerges as slightly stronger than the other.
That’s one approach, at least. The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants. You don’t wait for a case to be truly 50/50 for this. So long as there is some appreciable legal ambiguity, there is no clear “correct” answer. Maybe 70/30 is enough, or maybe even 75/25 will do. Either way, the lack of a “correct” answer means that the judge can rule in a way that furthers whatever normative vision of the law that the judge happens to like.
I think this difference explains President Obama’s view of “empathy,” as well as why many people see it as a very odd label for a judicial nominee. Everything he has said about the Supreme Court suggests to me that President Obama is in the latter camp: He sees legal ambiguity as a cause for judicial empowerment. He believes that when there is legal ambiguity, a judge is then free to make the decision he wants. From that perspective, the key issue becomes how a judge decides to exercise his or her discretion within the zone of ambiguity. Here’s what Obama said when he announced his vote against John Roberts:
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Put another way, Obama seems to believe that close cases let judges pick a side, so the big question is how a judge will go about picking a side in the close cases. This view of the judicial power isn’t necessarily conservative or liberal; it is very much the view of Richard Posner, who envisions that position as a “realist” and “pragmatist” view. Whether or not those labels are accurate, that vision of legal ambiguity does tend to be judge-empowering: The judge presented with a close case doesn’t need to read more cases, or read the briefs again. Rather, he can and should pick the side by looking in his heart.
I think this explains Obama’s view of “empathy.” Obama sees empathy as critical because he thinks that judges in close cases have a free choice as to which side should win. A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless. Recall what Obama said when he voted against the confirmation of Samuel Alito. He couldn’t vote for Alito, Obama said, because Alito
consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he’ll rule in favor of the employer. If there’s a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he’ll rule in favor of the state.
In other words, Obama saw Alito as exercising his discretion to pick a side the wrong way.
What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30” side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.
UPDATE:Thanks to readers for the critical comments, especially the ones trying to explain the thread. I am sorry if the post and/or my commentary comes across as insufficiently civil or open-minded. I was trying to openly and honestly characterize a debate, a debate that in my experience is quite real and really explains an important dynamic. Apparently I failed in my effort to do that.
What went wrong? I suspect I unintentionally characterized something in a way that left an impression that many readers reacted against, and that led to two ships passing in the night: I was focusing on one dynamic, readers another. In particular, I think my effort to state the two sides of the debate ended up describing both sides in terms that are too extreme: I should have tempered the description a bit on both sides. That error led to a very odd comment thread, with readers seeing in the post all sorts of things that I didn’t expect, accusing me of all sorts of views that I don’t have, implying bad faith, etc.
In any event, I apologize if the thread wasn’t up to usual standards: I posted it because I thought it was, and I didn’t see the points that so many readers objected to as particularly relevant or likely to trigger a reaction until they did.