A lot of what the Court does now is balancing. Given those balancing tests, how much you put the thumb on the scale for some value or another will determine the proper result. None of this can be done the way you apparently believe is the only proper methodology.

To put it more simply, I think you're making this too hypothetical and simplified.

In Civil Law countries ( and i believe in the USA) there are rules of "empathy."
In dubio pro reo
In dubio pro operario
( in ancient times ) in dubio contra fiscum
The first one means in case of doubt the decision goes to the defendant. Or in other words , you must prove beyond reasonable doubt.
The second one is the same, but this time in, favor of employee,
Anyway must be sympathy not empathy. Mises and Weber defended" empathic comprehension"( the Smith´s sympathy)

I don't think is a particularly illuminating way to discuss the concept of legal ambiguity and Obama's approach to it, mostly because no judge or theorist will ever admit that they're siding with the party who they themselves believe has a weaker legal claim. And there's no way to know whether or not the judge or theorist in question is giving an accurate account of their view of the merits, rather than just siding with one party for political reasons. The closest you can get is to point out inconsistency in the judge or theorist's conclusions; but most cases have sufficient dissimilarities that it will always be possible for one accused of inconsistency to make a plausible case that they are, in fact, consistent.

So what's left? Legal critique. You can critique a judge or theorist's arguments on its own terms, or on the terms of past cases or other relevant authorities, or on the basis of your own interpretation of the Constitution (or whatever text is at issue). But by framing things in terms of "right answers," and percentage values of "correct" legal argument, you're essentially just silently endorsing the rather sweeping proposition that there is a single correct answer to every legal issue, and that different persons of good faith, having studied the relevant authorities and arguments, will ideally agree on what that correct answer is. I do not think that that is true, and I think that that is what Obama was getting at in his remarks about the 5% of hard cases. The question then becomes whether "empathy" is relevant in arriving at one's determination of the correct legal outcome, not whether empathy ought to or could overcome a judge's belief that a non-empathetic result in a particular case is correct.

Excellent point on the need for balance.

Consider that jurists are far more likely to have worked in a large firm with corporations for clients than Legal Aid or a plaintiff's firm. Consider who they pick for friends and associates, like Scalia hunting with Cheney on another oilman's private hunting preserve. Pick a guy with a different background, maybe someone who bowls in a league for recreation.

I disagree. "Empathy" reflects how judges interpret and weigh issues of fact and law in close cases. It's not about picking the side you want to win. For example, it's about whether a side's claim is plausible enough to satisfy Twombly (or whatever the notice pleading standard is these days). When one judge believes the plausibility of a claim of discrimination and another judge feels the claim is implausible, that is a very ill-defined and essentially discretionary decision that sensible people can disagree about. Both judges are still weighing. It isn't a conscious decision to push down one side of the scale, but more like having scales that are calibrated slightly differently. Neither is right or wrong. The federal courts have more judges whose scales are calibrated on the conservative side, and Obama wants to add more judges who are calibrated on the liberal side. This is reality and exactly how judicial appointments are supposed to work.

It's been interesting to watch conservatives try explain to themselves why empathy is a problem. They seem seriously exercised by this. And perhaps they should be. A party that styled itself as "compassionate" can't figure out why judges should lack that virtue. Hence all the hand-wringing about empathy.

More seriously, there's no interesting (or, if you prefer, neutral) distinction between what Orin calls "careful judicial weighing" -- according to what exactly? -- and what he calls "judicial empowerment." This is just another way of describing judicial restraint v. judicial activism. You call "careful judicial weighing" holdings that you find plausible and attractive; you call "judicial empowerment" holdings that you disfavor. Nothing new here.

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.

This is a ridiculous way to state the position you disagree with. The better way to put it is that, as there is more argument either way, the judge can allow is ideas about policy to play a role. The closer the case is to 50/50, the more readily policy arguments can come into play.

This seems to be a perfectly reasonable way to describe a common law judge. Just today, I was reading some House of Lords case law, and a Law Lord admitted that a precedent was distinguishable "if Your Lordships care to do so". He didn't, so he followed the precedent, all the while carefully explaining why. But the "why" there is inevitably going to be more than pure law, i.e. what we jurists call "policy arguments".

None of this is unreasonable, as k John already proved by listing some of the "in case of doubt" decision rules that are known in the law.

Martinned,

Um, why is that ridiculous? Isn't it what Judge Posner says in his writing on this topic? Or perhaps you are using the word "ridiculous" to mean "not the way I would put it"?

Prof. Kerr,

I can see your point. But he follows up those qualified statements by baldly asserting that in these hard cases, "[l]egal process alone will not lead you to a rule of decision." If one accepts that this is true, then the concept of legal "correctness" fails in the context of these hard case, and judge are then free to bring personal values, such as empathy with the powerless, to bear upon the decision before him or her. I don't know what the alternative would be--if a judge cannot find an answer to a tough legal question posed to his or her court, should s/he simply decline to vote in that case?

I think that the point on which I principally differ with your post is in your assertion that Obama or others who share his general interpretive outlook would in fact agree that a judge should feel free to side with the litigant whose legal position is, in that judge's view, weaker than that of their opponent. When the judge can actually discern a legal answer, whether it be 55-45 or 99-1 (I confess that I'm unsure how these percentage comparisons apply in the context of a binary correct/incorrect dichotomy of outcomes), s/he is bound to rule in favor of that answer. When s/he cannot discern a correct answer, empathy is one legitimate source of insight for a decision that is now by definition going to either remain undecided or be decided by reference to extra-legal values.

If a case is "easy" how does it get all the way to the SCOTUS? Or, do you claim that SCOTUS never handles "easy" cases?

Obama's formulation is characteristically disingenuous. The judicial attribute he is seeking isn't "empathy," but doctrinaire liberalism. He wouldn't want someone who had empathy for fetuses, or for small businessmen subject to government regulation by petty, power-mad bureaucrats, or WWII veterans who hate seeing the flag burned, or devout Christians who don't like crucifixes submerged in urine, or the parents of Pamela Powers (she was the murder victim in the "Christian burial" case), and so on.

@OrinKerr: "Ridiculous" was my way of accusing you of setting up a straw man without explicitly doing so.

You said:
"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."

And I'd argue that the better way to state the argument is that the freedom of the judge to consider "policy arguments" increases as the case comes closer to 50/50, in the manner of a sliding scale.

That means that in a case that, on pure law, is about 55/45, the judge can choose to pick the "45" side, if there is reasonable argument for it. (An argument that, ex hypothesi would not be of the nature of lex lata.) However, if he wants to rule for the "35" in a 65/35 case, he'd need a much stronger argument. In other words: sliding scale between the freedom of the judge and the legal "closeness" of the case.

No one would argue that judges become completely free once some minimum level of ambiguity is reached. That's certainly not how I understand judge Posner.

Ryan,

This post is about the fact that there are two sides to a debate: Am I correct that you agree with me that there are in fact two side to the debate, and the existence of the two sides nicely explains the debate over these issues? That is the point of the post, so it seems important to determine if we agree on that before we go on to debate the limitless number of side topics that the issue raises.

Orin,

I think a few commenters (such as BRM) are challenging your assumption that all cases can be decided purely based on written law and close cases are ones whose arguments on each side are (close to) equally convincing.

Aren't many close cases ones where the law inherently calls for some personal judgment on the part of the judge? For example, deciding what is "plausible," "reasonable," "unnecessary," "cruel," etc. Many laws are written this way, and they explicitly call for judges to interpret these words based on their personal judgment.

Orin,

Interesting post, but I have a couple of problems with your argument here. First, judicial decision making rarely can be reduced to a concrete math equation. I don't think, realistically, that there are many cases that objectively can be viewed as favoring certain parties in a set percentage, 90/10, 70/30, etc. Second, I think you make a pretty big leap from Obama's statements, which seem to me to be describing cases that are essentially 50/50, i.e., where the law only takes you so far, and the ultimate decision necessarily is a matter of judicial discretion. I really don't think Obama was arguing--or would argue for that matter--that if a case objectively favors the defendant 70/30, that empathy should make up the spread.

Orin,

I remain unconvinced that more than a bare handful of people believe that a judge should be free to do whatever he or she wants at the first sign of ambiguity. On the simple matter of your characterizing the two sides of the debate, I think (as others have indicated) that you have set up a bit of a straw man.

More deeply, I am unconvinced that this probabilistic framework even makes sense because it assumes that a "correct" answer not only exists but is readily graspable to any sufficiently smart person who makes the effort to find it. If the framework is philosophically troubled, then surely the description of the two sides will founder (at least somewhat) on that.

In those 5 percent of hard cases, the constitutional text will not be directly on point... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

Obama is correct, of course, in stating that there are epistemological limitations in constitutional cases. If Obama wants to appoint someone who whips out "empathy" only in those cases in which it's not clear which party has the law on its side, I might be able to live with that, under two conditions:

(1) No being coy about what we're doing. If "empathy" supplies the rule of decision because the law isn't clear, then say so. Don't say that the constitution or the statute clearly mandates a certain result when the ruling was based on which party was more pathetic. This isn't the outcome that I'd prefer, but the law would at least be more predictable to potential litigants if we knew that in close cases the sob story would prevail. "Lily Ledbetter? The statute of limitations ran on her, but the law isn't clear here, and she's such a sweet gal, so she wins."

Just come out and say (a) the law isn't clear, and therefore (b) the case is being decided on some other grounds. A rich guy in Ledbetter's place wouldn't get the same sympathy. Okay. Not particularly fair, but at least the outcome is predictable.

(2) Use "epathy" to cut through fog, not to create fog. I have that much less of a problem taking a 51-49 case and deciding it on empathy. In that case, the miscarriage of justice is only, um, 51 Justice Units. If the law really can't produce a clear winner, then maybe we can use empathy. We've got to pick a winner, and if the law can't help us, empathy seems like as good a backup as anything else. In other words, I can tolerate empathy breaking a tie.

That won't be how it happens, though. What's going to happen is that we're going to get clear cases, of the 90-10 or 80-20 variety, and we're going to "empathy" them down to the 50-50 toss-up zone, at which point we'll throw up our hands and say "too close to call, the sob story wins."

Sure -- what's the difference between "careful judicial weighing" and "judicial empowerment"? Your claim is that weighing involves examining the legal arguments, determining which side is stronger, and holding for that side. This is a fairly mechanical view of the law, or, if it allows appeals to moral sources, then it looks like some form of soft positivism or perhaps a Dworkinian theory, where legal sources always supply right answers.

Alternatively, "judicial empowerment" is premised on a theory of judicial discretion. Sometimes legal sources don't provide answers to legal questions. Or the legal sources provide multiple answers but are indeterminate as to which answer is best. In those circumstances, judges can either weigh some legal sources more heavily, decide based on non-legal sources, or use some random decision-making procedure (though almost no one favors that solution).

Your claim is that Obama believes that there are cases of judicial discretion, and that he wants judges who will act lawlessly under those circumstances.

My response is: what you're describing as judicial empowerment -- lawless exercise of judicial discretion -- is equivalent to charging Obama with favoring liberal judicial activism. This is a familiar trope. But to make it work, you'll have to do some heavy lifting on the jurisprudential side of things. Among other things, you'll have to show that it's possible for judges to resolve all important legal questions by appealing solely to legal sources, even when those sources conflict. And they'll have to be able to do that objectively, that is, without appealing to extra-legal values in determining how to weigh conflicting legal sources. Maybe you have an argument along those lines, but, unless you do, it's hard to see the distinction you're drawing. And if the distinction isn't there, then it just looks like you're accusing Obama of promoting judicial activism -- namely, decisions that don't align with your views.

One further exegetical point: your theory of what Obama means by "empathy" might be reconciled with your anti-discretion (mechanistic positivism/Dworkinian?) view. You could read Obama as saying: in some very hard cases, ordinary principles of precedent and intrepretation aren't going to help. Perhaps that's because they conflict. (E.g., how should a justice weigh long-standing precedent when it conflicts with original meaning?) In those circumstances (rare as they might be), there is no choice but to appeal to a broader set of values, even if only to determine how to prioritize the value of various legal sources. On that view, empathy refers to how those values should be organized or weighted. And Obama could claim, with some plausibility, that no justice can avoid doing that.

What's your response to that reading of Obama's view?

Orin,

I'll confess that I don't see where you expressly disavow this unstated assumption. Specifically, your second paragraph seems to define what a close case is, and seems to define it in terms of legal ambiguity (a phrase you start off with in the subsequent paragraph).

I think the cases to which Obama may be referring are not these types of cases, but ones that deal with laws or concepts that require judges to make a personal decision. If that is the case, then the position that a judge's empathy and personal judgment matter seems much more reasonable. Do you disagree that it seems reasonable if those are the types of cases Obama's referring to? Do you think he's definitely not referring to those types of cases? Do you think those cases are not particularly common, or not the ones that are usually contentious?

AF,

Of course empathy is *sometimes* legally relevant. I can't imagine anyone assuming it is never relevant.

What's unstated but understood by all sides in this debate is that Obama doesn't truly prize empathy qua empathy, or even necessarily the value of ruling for the powerless vs. the powerful in close cases. No one seriously thinks or argues, for example, that Obama wants a Justice who, in a commerce clause case, would be empathetic towards an individual citizen trying to assert his or her Ninth Amendment rights against a "strong government" federal regulatory scheme, as in Raich. Nor does anyone suggest that Obama wants his nominees to be empathetic towards a person asserting asserting an individual right to bear arms against an employer or government that prohibits that person from carrying a handgun. "Empathy" is code for a desired judicial result.

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.

Just a check on my reading comprehension. Is this statement fairly/properly read as "I think this explains Obama's view of 'empathy.' Obama sees empathy as critical because he thinks that judges in close, e.g., 70/30 cases have a free choice as to which side should win."?

I consider myself a compassionate and empathetic person. I am an active volunteer in my community. I give time to causes I believe, to the tune of hundreds of hours per year.

But empathy and compassion are not traits I want my Government to have. The role of Government and the Law are to make the hard choices about what is best for society. Some of those choices will hit a particular person harder than someone else. Because there is disparate impact to some people doesn't mean that the Law should change to have more compassion for those people. It means that their friends, family and neighbors should show compassion and empathy and help them with their burden.

Another way of saying it is Equal Treatment under the Law, doesn't mean equal treatment by the Law.

When Judges start using their empathy and compassion for the plight of an individual to undermine the Law, they reduce the ability of the Law to produce the Societal wide impact the Law was designed to have.

It means that their friends, family and neighbors should show compassion and empathy and help them with their burden.

You imply that the choices should always hit the individual harder, and not the government or the business or corporation.

I'm baffled that so many people think empathy means "siding with the guy I like best." I don't think that's the case at all - I think what Obama was referring to was a process of continually attempting to infuse one's understanding of the world with an understanding of the people involved. And that can mean popular litigants as much as unpopular ones and, yes, can probably even include an understanding of what motivates decisionmaking at a corporate level. Turning it into "vote for the person I feel sorry for" is missing the point; anyone can do that - it doesn't require any special skill of empathy.

Orin, I don't think your analysis here really works at all. First, just about no one thinks that as soon as there's a bit of legal ambiguity, judges should decide cases "however they want." That's a laughable straw man.

Second, you assume a very clear distinction between "legal materials" and other, unspecified reasons for decisions. This doesn't work, because the clarity of this distinction is one of the main things that is in dispute. Do clear policy goals behind legislation (or even stated therein) count as legal materials when interpreting the legislation? Do basic principles of American jurisprudence count as legal materials? Many judges would agree (even if you might not) that notions like fairness and equality count among those principles, so they certainly consider themselves to be conducting legal analysis and reasoning when they take those principles into consideration in reaching their decisions.

Third, your analysis ignores the fact that what you call "legally relevant materials" can be "ambiguous" in more than one way. A line in a statute on some technical point can be ambiguous, in that there are two reasonable ways to read it; it might be that the purely textual evidence is, as you say, in equipoise. A very different situation arises when, say, litigants are raising questions that the legislature seems not to have considered at all: it might still be that the available legal texts leave the evidence in equipoise -- but this time, it isn't because there are two solidly grounded legal arguments, each equally reasonable; it's because the law just doesn't appear to offer much help on the question at all. Judges tend to treat these different situations differently.

Those are just a couple of the possibilities -- there are others -- but your model of judges coming up with a single-valued number representing the balance of the evidence, then making their own answers up if the number they get is close enough to 50%, just doesn't strike me as illuminating at all.

The problem is that, if a judge views ambiguity as personally empowering, they're going to see ambiguity where somebody who viewed it as an inconvenience would not. All sorts of judges have to deal with ambiguity, but we don't want the judges to have an interest in exaggerating the degree to which the law is ambiguous. We want them to be trying to decide on the basis of the law, not searching for excuses to go with their personal preferences.

PC :-P

And of course science without empathy can only end in awesome!

To the extent that empathy is legally relevant, the distinction between (1) choosing the "position with the greater support in the legally relevant materials" and (2) using empathy is not analytically valid.

AF, your apparent attempt to play gotcha has me baffled. You appear to believe that empathy is either never legally relevant or else always legally relevant. Thus, when I rejected the view that empathy is never legally relevant, you took that as equivalent to the view that it is always relevant. The obvious answer -- at least obvious to me -- is that empathy is sometimes legally relevant and sometimes legally irrelevant.

An example: In the recent supreme court strip search case, the court must weigh the invasion of privacy with the government need. You cannot proerly weigh an invasion of someone else's privacy without empathy. Thus, in that case, empathy would be legally relevant.

Orin:

The people who are critical of your framing, or your resolution, all pretty much point to the same thing, something you've yet to address in any response to the comments: you believe that there are "correct" answers about legal questions, and they don't. Maybe that's an irreconcilable difference. Maybe I'm stating it too baldly. Maybe it's better to say that when we reach the realm of "closer cases," wherever that is, there is no "correct" answer, but outside that zone of indeterminacy, there are correct answers. I don't know what everyone believes individually, and I suspect it's probably slightly different.

Nevertheless, your framing of the issue requires that there be correct answers for cases. People have rejected your approach. You're saying, "but I'm just describing what Posner and Obama have said." I'd suggest that with respect to Obama you're parsing a political speech as thought it were rigorous legal text. Perhaps Posner really does believe what you say he does, I don't know. But with Obama, I think we have to take into account that he is a politician, and I think that means we can't parse his statements like we would a Supreme Court opinion. (I mention that just to point out that I don't think commenters have been irrational or wrong to put their thumb on the key disagreement they have with the way you've set up the issue, as you appear to have suggested in response to some of the comments.)

Here's how the attorneys at Powerline see the issue (their commentary is always worth a read):

It's a fundamental principle of our legal system that cases are to be decided based on the facts and the law, not one's likes, dislikes, and sympathies. The rule of law depends on this principle, because people's likes, dislikes, and sympathies are idiosyncratic and thus unpredictable. And when legal outcomes become too unpredictable, the question of how to comply with the law becomes anyone's guess.

This is why jurors typically are instructed by judges not to allow their sympathies to influence their verdicts. Here, for example, is a portion of an instruction contained in the Ninth Circuit Manual of Model Jury Instructions, Civil, 3.1 (2001):

You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.

The instruction does not state that if the evidence is ambiguous or the case is close, the juror should allow his or her sympathy to take over. Jurors might well do this, but they are not instructed to; rather they are instructed not to.

But Obama wants Supreme Court Justices who, in close cases at a minimum, will allow their sympathies (he says "empathy") to play a major role. And he wants those sympathies to run in favor of those who occupy stations in life that he finds appealing. For example, as the Washington Post reports, Obama wants a Justice who would have sided with Lilly Ledbetter because (in Obama's words) she was "out there trying to raise a family, and [was] being treated unfairly." Under these circumstances, says our president, "the court has to stand up if nobody else will." This is true whether or not, on the best reading of the law and the facts, Ledbetter's suit was procedurally barred by the applicable law.

Thus for Barack Obama the result on the purely procedural issue before the Court in Ledbetter's case should have depended on (a) whether she was out there trying to raise a family and being treated unfairly and (b) whether someone else besides the Supreme Court Justices would stand up for her (Congress stood up for people like her by changing the legal provision in question, but it was too late to help Ledbetter -- all she got was her inaugural ball dance with Obama).

I don't think these are really two different approaches.

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

The other approach is to see legal ambiguity as cause for judicial empowerment ... Maybe 70/30 is enough, or maybe even 75/25 will do

In both, you claim that in an ambiguous case, the judge can exercise his own discretion (though claimed more weakly in #1 with "perhaps"). The two approaches simply differ in how they define an ambiguous case. The first tries to assume that legal analysis will never produce an ambiguous case (pausing only to acknowledge that two real numbers could technically be equal) and then skips over any consideration of what would constitute acceptable discretion.

Orin,

Overall a thoughtful post, but it seems to me that you let your bias cloud your usually sound judgment and analysis. Nowhere did Obama suggest that "when there is legal ambiguity, a judge is then free to make the decision he wants." What Obama has suggested is that in very close cases, judges should be guided, in part, by their overall sense of fairness, their values, and their sense of what is right. I submit that all judges do it anyway, except some refuse to admit it. Many laws are written in such a way that their interpretation almost necessarily causes one to make essentially policy decisions. I believe this is what is referred to as "spirit of the law". While following a letter of the law may be sufficient in 95% of case, in the remaining 5%, a judge needs to take into account spirit of the law. I believe this is where the "extra" qualities come into play. But it emphatically does not mean that whenever there is some legal ambiguity, a judge can do whatever he pleases.

I haven't read Judge Posner's book, so I can't talk about his views but I have read and listened enough of Obama's speeches to be fairly sure that my interpretation of his view on judiciary is correct.

Prof. Kerr wrote:

You may be right that readers are reacting in a critical matter to an unstated assumption that is expressly disavowed in the post, and is not even directly implicated by the post. But if that is true, I am not sure how I am to respond -- except, I suppose to point out that readers are reacting to an unstated assumption that is expressly disavowed in the post, and is not even directly implicated by the post.

I'm not challenging your assumption that all cases have clear resolutions. I'm challenging your interpretation of Obama's remarks. It is legitimate to be afraid that empathy is code for results-oriented jurisprudence, but empathy does not have to be such a code word.

When Obama says Alito always sides with the employer, I don't think Obama is suggesting that Alito is in the bag for corporations. Obama is implying that if a judge always or almost always sides with employers, even when the law is not crystal clear, it probably means the judge interprets the law in a way that is sympathetic to the legal positions of employers. If Obama wants judges who are more sympathetic to legitimate legal arguments made by employees, what is wrong with that? How is that different from Bush saying he wants judges who agree with conservative legal positions?

Why is it that when liberal judges take a position on a disputed area of law, they are portrayed as being motivated by policy and results? And why is it when conservative judges take a position on a disputed area of law, they are portrayed as going by the book and applying the law?

You cannot properly weigh an invasion of someone else's privacy without empathy. Thus, in that case, empathy would be legally relevant.

What does it mean to properly weigh an invasion of someone else's privacy?

If judge X says that this asserted violation of privacy is no big deal and judge Y says that it is a big deal, how do we objectively determine who is right?

Answer: We don't.

How do we determine than "empathy" matters to a "proper" examination of this issue? Why shouldn't we just look to precedent or legislative history to try to figure out what legislatures or the founders would have thought? What about the plain meaning of the Constitutional provision in question? Why is it the judge's personal sense of empathy that matters?? In a democracy, shouldn't he or she defer to others?

Yeah, I don't mean to present a false binary choice for you here. But, the bottom-line is that if you want to "concede" the usefulness of empathy in one case, you have to be careful that the principles that enable you to do so are not also applicable in the cases where you apparently think that empathy does not matter.

And anyway, I don't think you really mean it when you say that judges should use their own personal sense of empathy in these sorts of cases. Right. Because, in the future, cases for which this precedent are on point, it wouldn't be appropriate for individual judges to individually exercise empathy. Instead, most liberals and conservatives would agree that the judge should follow precedent, whether they personally agree with whatever exercises of empathy did or did not go into formulating that precedent it or not.

So, it sounds like you agree with Obama. You think empathy is appropriate. For some cases. Where objective evidence of the law has run out. For future cases where this case is precisely on point, objective evidence of the law will not have ran out. It is only in deciding the case in the original instance that exercises of empathy would be appropriate.

TNeloms, For example, deciding what is "plausible," "reasonable," "unnecessary," "cruel," etc.

20%, 40%, 32.5%, 90%, etc. The law is written qualitatively, but some think we should apply a quantitative analysis to it? Maybe at the Supreme Court level, but that still strikes me as odd. If you are doing a quantitative analysis of qualitative evidence, there is room for discretion.

OrinKerr, These are serious and difficult issues here. To the extent you want to poke fun at the side you find less persuasive by presenting an intentionally parodied version of it, I submit that it just makes you look close-minded instead of funny. Just a thought.

Agreed that they are serious and difficult issues, but Sarcastro cut to the heart of my objection. You are analyzing this as if there are clear cut issues when it comes to law, especially at the constitutional level. Previous decisions that weigh 70/30 on a given side does not necessarily mean the 70% were right.

AntonK (quoting Powerlineblog?), will allow their sympathies (he says "empathy")

The two are distinct concepts and should be treated as such. They are often confused, but that doesn't mean they are the same thing.

Simon P,

What an uncharitable comment. In brief response, of course there are hard cases. The point I am making is that there is broad disagreement about how closely one should look at legal authorities for the answer to them. Obama himself says that you shouldn't look too closely; I was pointing that out, as well as the broader disagreement on the question. I don't think that makes me an unsophisticated theorist, although I assume that since you can cite Dworkin, you are the ultimately judge of such things.]

I think the repeated use of the word empathy does reflect a humanist - liberal, if you prefer - view. Who would have empathy for GE, let alone Haliburton? But there is an additional factor.

What standards can be set for people who are perhaps not intelligent, not educated, injured, ill, or otherwise under stress? If you've been dragged from your home, flattened on the ground, threatened with a gun, yelled at by policemen, hand-cuffed and whatever, should you really be expected to parse the law it with Law Review acuity? The legal abstract of real life is not real life.

David Welker,

On your point about empathy, I think it is relevant when the law says it is relevant. If you have to measure how severe an invasion of privacy is, you have to imagine the invasion of privacy to the person whose privacy was invaded. That is what the law requires. That requires empathy.

Obama's use of empathy is totally different, as his speeches reveal. Obama uses the Ledbetter case as one of his favorite examples; empathy is an extralegal concept in his view, not one called for by legal doctrine.

ox,

If you are looking for a post that is making interesting claims of legal theory, you should be disappointed. This post is about how different views of the role of legal ambiguity shape public debates on the role of the courts: It is not a defense of a particular side, or the presentation of a particular theory of law.

I don't think it's a controversial notion that some judges may allow the prospect of a harsh result for those classes with whom they empathize to influence their decisions. When cases have plausible arguments on both sides, this empathy may tip the balance. A judge that lacked this sort of empathy would decide the case differently if they found one legal argument more plausible than the other. That the former kind of judge is the one Obama wants on the Supreme Court is a fair reading of his speech.

ox,

The point is to identify two different views of what it means for the traditional legal sources to "answer the question." Does that mean answer it with certainty? Or does that mean to provide a somewhat more persuasive answer than the alternatives?

AF, your apparent attempt to play gotcha has me baffled. You appear to believe that empathy is either never legally relevant or else always legally relevant. Thus, when I rejected the view that empathy is never legally relevant, you took that as equivalent to the view that it is always relevant. The obvious answer -- at least obvious to me -- is that empathy is sometimes legally relevant and sometimes legally irrelevant.

Orin, I am not trying to play gotcha. I missed the part of your post where you acknowledged that there are important areas of law where empathy is legally relevant and that your the distinction between empathy and rigorous legal analysis does not apply to those areas.

Because you did not (in your post) acknowledge this very important counterexample to your main point, I thought it was worth pointing out in comments.

I think the point he is making is that while empathy is clearly relevant and has a role, Obama would like it to play a role in more cases than many scholars are comfortable with.

I think the better reading is that Obama would like empathy to play a role in more cases than Orin is comfortable with.

Which, by the way, is fine. It is, after all, a political decision at the end of the day. No President is going to pick a Supreme Court justice solely on the basis of what law professors think constitutes a good Supreme Court justice. (Sorry to disappoint, law professors).

I think the push-back in this thread is just what I said earlier, and it has only been confirmed by further comments: some of us just don't see law the way Orin does. (That's ok, too, btw.)

But it's an interesting thread, anyway. And Orin, take heart: the comments here have been much more civil than on other threads (like the ones about diversity on the court).

Anonymo:

The idea of a 70/30 case, or a 55/45 case, just begs the question, because one's evaluation of the strength of the arguments on each sides is already influenced by one's personality (including empathy) and life experiences. A set of facts and legal arguments that looks like 70/30 in one direction to you, might easily look 60/40 the other way to me.

Sure, although I don't know why that undercuts my post, or why that means that the idea somehow "begs the question."

Professor Kerr -- I'd love to read your response to dmv's post at 7:19.

Obama uses the Ledbetter case as one of his favorite examples; empathy is an extralegal concept in his view, not one called for by legal doctrine.

And we are back to the spirit versus letter of the law debate.

I wonder if Obama thinks empathy is a natural legal view, but sympathy is the issue people have problems with. Sympathy is full of emotions, empathy not so much (depending on the person).

If you are looking for a post that is making interesting claims of legal theory, you should be disappointed. This post is about how different views of the role of legal ambiguity shape public debates on the role of the courts: It is not a defense of a particular side, or the presentation of a particular theory of law.

I'm not looking for interesting legal theory (no offense, but this isn't the place I'd be looking to find it). Instead, my point is that your argument rests on some theoretical claims. And those look unfounded, or at least not defended. You think that there is a view about judicial decision-making that explains a public debate about the role of the courts. But even that descriptive claim ascribes a certain theory of judging to one side (Obama's) and another theory to the other. But one of those theories -- the theory in which there is never discretion at any level -- is implausible. And so your readers are naturally wondering who, if anyone, ascribes to it.

Since you seem to place yourself on the side of "judicial weighing" -- presumably you don't want judges who are lawless, or who will replace law with politics -- your readers are asking you to: (1) show that Obama thinks that judges should reject careful weighing and ignore legal sources (since the quote doesn't seem to support that claim), and (2) defend the claim that judicial weighing is always, or nearly always, possible.

My own view is that with respect to (1), you've over-stated your case; and, regarding (2), you haven't said much to support the claim that judicial weighing is what's really doing the work in hard cases. As I said above, you probably can't defend (2) in a blog post. I wouldn't expect that -- I'm not reading here for good legal theory. But your view depends on a defense of that claim. And since it's a hard claim to defend, Obama's modest view -- sometimes judges must exercise discretion -- looks that much more plausible.

Look, there are hard cases where empathy has a role. In Brendlin v. California, for example, the Supreme Court had to decide whether a passenger was "seized" during a traffic stop. The Court ruled that the passenger was seized because no reasonable passenger would believe himself free to walk away from a vehicle that an officer had pulled over. To arrive at its conclusion, the Court necessarily had to empathize with the perspective of the automobile passenger.

But that is not the kind of empathy that Obama is talking about. Judging by the context of his comments, Obama is talking about judges using close cases as an opportunity to benefit a person or group that is deserving of empathy.

I don't think there's anything "uncharitable" about pointing out that your approach to "judicial ambiguity" denies that "judicial ambiguity" ever exists, because that's a true statement about your position.

Now you are saying that judges, in "ambiguous" cases, just have to look a bit harder at the law, something Obama (you claim) thinks judges shouldn't have to do. So, in your view, there is the "clear" case, where only one outcome is appropriate. Then there is the "ambiguous" case, where judges have to do a little more work, but where still only one outcome is appropriate. The only case where there is not a unique and appropriate outcome is the case where the legal evidence is in exact equipoise, which will never happen in a finite legal system.

What you're describing is a system of law that is almost completely determinate, with an answer for every question.

Alternatively, you could be saying that judges have to reach some judgment about the stronger of two legal arguments and then that they ought to decide in favor of the stronger. That view of what judges can or ought to do would at least be compatible with your claim that judges must "work harder" in ambiguous cases and not allow a fuzzy "empathy" factor to tip the final decision. But you seem to exclude this possibility because you speak of the support the "legally relevant materials" provide, not any individual judge's interpretation of them. You seem to think that there will be a single right answer, in all but the perfectly equipoise case, and it's just a matter of having judges do the work to reach that right answer.

So I reiterate my criticism that you either have a very simplified view of what judges do, when they evaluate legal materials, or you suppose that they can and should be Herculean in their exertion of time and effort.

Really, the comments here should be a signal that something is remiss with your position. No one seems to support your view of empathy on jurisprudential grounds. They seem to agree that empathy is a strange and mysterious codeword for favoring certain kinds of parties. The people who disagree with your notion of "ambiguity" have seized on precisely the same kind of criticism I am trying to make, which is that you don't really think there are any truly "ambiguous" cases, because the law will always have a single answer (it will just require more or less work to get at it).

Long story short: "Empathy" is Obama's euphemism for politicizing the bench.

This implies that a bench selected primarily by Republican Presidents is somehow at the moment free from politics.

I have a hard time believing the Court is some sort of Garden of Eden, where Obama is passing around apples.

Except that Chief Justice Roberts's umpire analogy is ridiculous.

Judges aren't umpires.

Really, I promise.

Judging by the context of his comments, Obama is talking about judges using close cases as an opportunity to benefit a person or group that is deserving of empathy.

Empathy != sympathy. It may be hard to empathize with a complainant without bias, but the idea that empathy means sympathy suggests you don't know the difference between the two.

"I suspect that if more commenters had clerked, there would be fewer allegations that I am being "ridiculous" and more readers nodding their heads."

Apparently, they're not able to empathize with you. :-)

Orin:

The problem is that it's kind of a boring thing to do if you're a judge. Just ollowing the law isn't so hard, but it's pretty boring to do for a career, which I think explains why a judge like posner needs to believe so much in ambiguity. Ambiguity makes the job interesting enough for Posner to be willing to keep it. Ergo, Posner believes in ambiguity.

Those judges who don't see a lot of ambiguity, and who are more burkean conservatives like myself, have a much more boring job. . . .

So how do you account for those of us who are not judges who see ambiguity in the law? Are we just trying to make it interesting so that we can have interesting jobs? I'm not sure how much work you think your explanation does, in terms of the sociology of the legal profession, which is why I ask. I'm wondering what your account commits you to in terms of what the function of law is, too. (I know, this isn't a legal theory topic, question, or blog. Fair enough. Still, I'd be interested to know. :P)

That said, the problem with "empathy" is empathy for whom?

As many posters have pointed out, this characterization clearly confuses the difference between empathy and sympathy. It's not at all clear that Obama's justify the assumption that he misunderstood that difference.

I've read through most of the comments and it seems like there is great disagreement about the amount of cases that the commenters would classify as "ambiguous."

Is this a liberal/conservative distinction? I.e., liberals think more cases are ambiguous and conservatives think there is a "right" answer in more cases? Prof. Kerr (from my understanding) is suggesting that the cases in actual equipoise are minimal, but many commenters seem to have a serious problem with that statement.

As an aside: I once heard a pretty smart Judge suggest that when he was younger he thought there was a correct answer to every legal question, and he was happy he thought this way because it made him work harder.

Also: isn't it, as a policy matter, better to have judges that think there is a correct answer in every case, rather than having judges think that ambiguity gives license to rule as he or she chooses?

Interesting post. Well written and thought out. Personally, I would like to see fewer law professionals on the court. In my personal belief, they tend to be bias in many complicated ways, and the laws are already being administered unjustly. As a matter of fact, again in my opinion, there is a lack of true justice in the court system, which leads to tyranny.

I didn't trust Bush, and I don't think Obama is trustworthy either. I would like my Republican form of Government, but both parties are governing like a democracy. (Majority Rules vs. The Rule of Law).

If people understood that a law must be truth, and any subsequent law authored by a subordinate authority to the Constitution is nothing more than a lie, and unconstitutional, then we wouldn't be at war.

Instead, we've bypassed the Grand Jury, ignored the fact that the FBI refuses to add 9/11 to Osama's wanted poster, and have overthrown 2 sovereign nations Government. We ignore the Constitutional safeguards much like they did in Germany.

I believe the goals of our government now is not unlike the goals of the German government then. But that again is just my opinion after reading the nuremberg reports. (And some Pre-FBI case files available on footnotes.com regarding Dr. Levi strauss.)

Regardless, we're suppose to be governed by the rule of law, the rule of truth, the only way to ensure Justice. What have we done?

Orin,
Your comments are helpful to me in understanding a similar but much less developed post you made a week or two ago. If I'm reading you correctly, your post is predicated on the idea that all cases can meaningfully be assessed within a one-dimensional, objective framework to arrive at a single numerical value representing the strength of an interpretation, and that that value is characterized by so little uncertainty, and so little lack of precision, that we should generally assume there to be a single, precisely correct answer.

But I wonder how this can be true. Isn't it possible that close cases are close because reasonable people would disagree about their outcome, either because factors in the decision are interrelated in a complex way, or because they involve an inherent degree of uncertainty or imprecision about what is "correct"? Imagine, for example, a case in which the Supreme Court, or Congress, has articulated a list of factors a court must consider in making a decision, without explicitly assigning a weight to the factors. (Or if you don't like that example, imagine some other case!) Isn't it possible that even though you would come out 55-45 in favor of balancing the factors in a way that ends up at a particular result, another reasonable, careful person might come out 55-45 in favor of the opposite result? Or even that the single-number reduction isn't meaningful in this context?

@Simon P, don't you think it would be better to say, "Here's where I disagree with Orin" instead of "here's where Orin's wrong"?

If the legal process doesn't yield a clear decision, why should a judge offer one at all? If we believe in popular sovereignty, shouldn't the judge punt, pronounce that because of ambiguity in the law the side that side that faces the burden of proof can't meet it and request the legislature rewrite the statute? Whether the judge attempts to decide the case by parsing the text with greater precision than the authors wrote it, or by deciding the case according to his sense of justice, fairness, empathy, or policy preference, the judge is making up law that was not approved democratically. A branch of government which is not popularly elected, and is composed entirely of members of one profession, has no business deciding ambiguous cases at all.

Mike S.:

I would say that if one side "faces the burden of proof and can't meet it," then the case is not ambiguous. If you can't meet your burden of proof, you have lost. I don't see the ambiguity.

I think it's far too charitable to your own view, Orin, to suppose that more commenters would tend to agree with you had they just clerked.

It's possible, isn't it, that the people who tend to clerk might tend to be the sort of people who either share your jurisprudential views or who haven't really put much thought into the matter, to begin with? Just given the self-selecting nature of the clerkship system, Orin, I'd think one would be reluctant to make any categorical claims about what a clerk-consensus would tend to evince.

And, just as an FYI, the regularity with which you refer back to your own clerkship in discussions of this kind is a little obnoxious. It just doesn't make your argument any more convincing to say that you're forming it on the basis of what one judge seemed to be doing for one or two years, while you worked for him.

Simon P,

I am not sure if you are misrepresenting my views intentionally or inadvertently. On the other hand, I do appreciate your instruction on what kinds of Internet comments are "a little obnoxious."

Best,
Orin

You'll excuse me if I don't take your word for it?

You are excused.

Let me know the next time you're in a courtroom whether the judges are calling them consistently with QuesTec or not.

Thanks!

I dunno, I clerked. Maybe I'm an outlier. And I didn't clerk for the Supreme Court - just a regular COA judge. But I agree with your detractors.

If we abandon the logical notion that there is a correct legal answer to every case, then we are, by definition, conceding that cases ought to be decided based on the personal whims of the judges (i.e., luck of the draw).

As a matter of practice this result may be unavoidable, but as a matter of theory it should be resisted. Obama's assertion that a particular judge's "heart" or "empathy" is a valid factor to be considered in deciding the outcome of cases gives license to judges who wish to diminish the importance of the people's duly enacted laws.

Orin, I think you're naive about legal determinacy and the ability to reduce it to percentages but put that aside. We have numbers.

Nearly all the justices show systematic patterns to their voting. This is probably an unconscious result, but true nonetheless. Nearly all have a thumb on the scale for various interests. The conservatives have shown great empathy for securities law defendants in recent years. Obama is saying he wants the thumb on the side of the scale for disadvantaged plaintiffs. However fine Justices Roberts and Alito are, they were selected because their thumb is on the conservative side of the scale. It just wasn't said out loud.

The key is how heavy that thumb is. Roberts and Alito appear to have lighter thumbs than Scalia and Thomas. And a heavy liberal thumb could certainly be criticized. But not its existence.

Should a "judgment" call be based on the happenstance quality of the judge's heart or on some external, correctable source?

Also, Simon P: If the goal is to help those that are systemically disadvantaged by the judicial process, shouldn't we address that problem in Congress, rather than seeking to appoint judges to do this? So if the problem is systemic, wouldn't it be better to change the process so that it's fair for everyone. And haven't we already made this judgment in society with our current process.

I may be misunderstanding what you mean by those systemically disadvantaged.

Frank Cross,

I had thought that it was clear that the numbers I offered were just a shorthand for a rough sense of the degree of certainty. That is why I said, "you might call it" rather than "it is."

As for what the Justices do, I agree that this is common. But the fact that some Justices do act that way does not mean that Justices must: That is a choice those Justices make.

As an aside, I'm fascinated by the commenters who want to reduce my view to the idea that every single case has an answer, and that all you have to do is turn the crank to get that. I never took that position, and I think such a view absurd, but I'm quite fascinated by the commenters who insist that my view is "essentially" that. (Maybe that would be a more fun view to attack?)

What's more fascinating: describing the President as seeking lawless judges who ignore legal sources, or describing a critic of the President who claims that it invites lawlessness to seek judges who, in the rare cases when legal sources are indeterminate, will appeal to deeper values?

Maybe it would be more fun to attack the President for an absurd view? And then it might also be fun to criticize commenters for saying that the original criticism was absurd.

What's really interesting here is that, instead of actually engaging some very substantive and serious responses to the post above, instead we get comments on rhetoric and civility. But most of the responses above took the argument of the post on its own terms, challenged its premises, gave reasons for finding them over-stated or weak, and still haven't been answered, except by ad hominem and asides.

I haven't read the comments yet, but I had a powerful urge to say this beforehand - judicial empowerment as a philosophy is not lawful, it is lawless; it is the cynical approval of the rule by men and not republicans.

On all sides of the political spectrum, judges don't seem to consistently use the standard judicial tools.

For example, originalism is important, except in cases of affirmative action. (Grutter) Precedent is important, except in death penalty cases. (Roper).

That said, it strikes me that suggesting that Obama is talking about the 70/30 or even the 75/25 case is an insufficiently generous interpretation of what he is saying, given his record at HLR, for instance.

OhioLawdog: There are all sorts of reasons to disagree with Supreme Court opinions, but I suppose the ones that irritate me the most are those where the justice discovers some specious way to distinguish precedents that would otherwise force the justice to reach a result he or she doesn't want to reach. A pre-eminent example of this would be Scalia's opinion in Employment Division v. Smith, where Scalia invented the "hybrid right" in order to minimize, rather than overrule, a line of cases that seemed to cut in favor of the defendants/respondents in that case.

These kinds of distinctions are made with some regularity, especially by the conservative members of the court, just because it's a good way to avoid precedent without going through the trouble of overruling it outright. It's this sort of thing, incidentally, that makes me exceedingly skeptical of Orin's view of the judicial function. There's nothing superficially objectionable about drawing distinctions between cases—that's just a matter of figuring out what the law requires—but Orin doesn't seem to have any way or reason to criticize plausible distinctions that, though logically coherent, are really just pretexts for outcome-based decision-making.

As for systematic disadvantage: Maybe it is a matter better dealt with by Congress, rather than Justices. I'm not attempting to defend Obama's views on "empathy," by any means. I'm just criticizing Orin's view, in favor of "mechanical" jurisprudence, which seems under-theorized and under-developed. Although it's worth noting that, when it comes to systemic disadvantages, in many respects Congress is as likely to perpetuate them as our judicial system is.

Simon P,

If you'd be willing to explain where I defend "mechanical jurisprudence," I would be very interested in that.

Orin, I'm not sure it is a choice that justices make. I think the explanation is psychological and they honestly believe they are behaving as you propose correct. At least in many cases.

However, given the overwhelming tendency of justices to behave in these systematic patterns, there's not much occasion to uniquely criticize Obama or anyone else for recognizing this.

And I'm curious. What justice is your beau ideal? Who decides most according to the law.

Erm. Even though he wasn't a justice. He was the 10th justice! Yeah...

when you have disagreed with a Supreme Court holding, what has been the source of your disagreement?

Simon P never answered, but I think this is an interesting question. For me it was Scalia's ingenious reading of the free exercise cases in Employment Division to extract the rule that another right had to be asserted along with free exercise to exempt a person's religious practice from a neutral, generally applicable law. Suddenly a fundamental right was demoted because of the spectre of the First Church of Pot springing up in every town.

My goodness, Simon and I think alike.

As an aside, I'm fascinated by the commenters who want to reduce my view to the idea that every single case has an answer, and that all you have to do is turn the crank to get that. I never took that position, and I think such a view absurd, but I'm quite fascinated by the commenters who insist that my view is "essentially" that. (Maybe that would be a more fun view to attack?)

I assume I'm one of those commenters to whom you refer. I do take your view to be that every case has one correct answer (the "one side that emerges as [at least] slightly stronger than the other," as you say). Is that an inaccurate characterization of your view? I don't think we're making this up - it seems to follow directly from your comment. (But I recognize that even this view would involve a lot more thought and work than merely "turning a crank," if that's the part of the characterization that you think is wrong.)

And of course your numerical shorthand is a shorthand. But your analysis, taken as shorthand, seems to imply a single dimension of analysis that a case ultimately can be reduced to, and an absence of imprecision or uncertainty - if not, I don't think I understand what it's shorthand for. You clearly thought the mathematical metaphor to be apt for a reason, and those of us who are questioning it (well, me at least) are just trying to understand what you're trying to say and figure out whether it makes sense to us.

OrinKerr

I'm fascinated by the commenters who want to reduce my view to the idea that every single case has an answer, and that all you have to do is turn the crank to get that. I never took that position, and I think such a view absurd.

(emphasis added)

Sean Hecht, responding to this comment.:

I do take your view to be that every case has one correct answer (the "one side that emerges as [at least] slightly stronger than the other," as you say). Is that an inaccurate characterization of your view?

Um, obviously yes.

I agree with the view that legal ambiguity is and should be an occasion for judicial empowerment. On the other hand, Orin interprets Obama's jurisprudence of "empathy" as one that favors the powerless over the powerful in the judicial resolution of such ambiguities. But who knows how such an application of "empathy" will turn out. Will it favor the powerless criminal defendant, or the powerless alleged crime victim? Will it favor the ever more powerful state so long as the state justifies its usurpations by pretending to champion the powerless?

In my view, any and all legal ambiguities should be resolved against the use of government power and coercion, and the reason why judges should feel themselves empowered to resolve close and not-so-close cases this way is because the state has no genuine legitimacy in the first place. The state may be a necessary evil, but if so, each and every thing it proposes to do should be judged by the standard of "necessity."

Obviously, this view owes a lot to Randy Barnett, and before him to Lysander Spooner, particularly Spooner's theory of statutory and constitutional construction advanced in his The Unconstitutionality of Slavery. I wrote about this recently in a post titled Empathy, Originalism, and the Presumption of Liberty on my blog at peoplevstate.com.

If the label is what bothers you, Orin, I'll retract it, since I only picked it up from ox's comments as a shorthand to refer to your position.

If what you're really after is my "mischaracterization" of your position, I suppose that'll take more work.

You insist that we've all gotten you wrong, that we're attributing a view to you you've never claimed to hold. You claim not to hold the position that "every single case has an answer, and that all you have to do is turn the crank to get that." But how is your position really distinguished from it?

For you, the matter is one of certainty. In some cases, the easy cases, we can know what the law requires with 100% certainty. In other cases, however, we can't be so sure. In those cases, judges should look over "legally relevant materials" and come to some judgments about the arguments they support. We can expect some of those arguments to be stronger than others; taken together, they will weigh definitively in one direction or another. Judges, in your view, should decide in favor of the weightier argument.

Now, if it were your position that judges could weigh those arguments differently and completely consistently with their appropriate judicial role, then I'd admit that I've mischaracterized your position. That is, if one judge could weigh the arguments 65/35, and another 55/45, and another still 25/75, then judges are certainly doing more than just "turning a crank" to reach a single, correct decision. They are evaluating and choosing among different ways to weight the different arguments and materials.

But this does not seem to be your conception of the judicial function. You describe the judicial role as "narrow." You say that the judge should take "the position with the greater support in the legally relevant materials," without reference to any subjective evaluation of the materials or the support they provide. You describe judges who decide against a 70/30 split as "lawless," implying that there is something about the 70/30 that is found within the law itself, rather than in any subjective evaluation of the law. You've said that "judges should follow the law independently of their will," which they should be able to do, "if judges are committed to doing it." If the law doesn't require a single, correct result in all or substantially all cases, then how could it be possible for a judge to "follow the law" independent of any exercise of his or her own will? (And how is that not "mechanical?")

You admit that there are "hard" or "ambiguous" cases, but for you these cases are just cases where we have to do additional work to figure out what the law really is. But that does not make the law in those cases "indeterminate." You say that there is "law" in such cases; you say that it is possible to "follow the law" in such cases; "following the law" in such cases means evaluating countervailing legal arguments based on legally relevant materials; there will be only one correct way to evaluate those legal arguments; the relative weights of the legal arguments will completely determine the outcome. So, even in hard or ambiguous cases, you seem to think there is a right answer—it is determined by the law, which is all that "determinate" means—and that judges should decide according to that right answer, and not in accordance with some other value, like Obama's "empathy."

The criticism here is not that you think all cases are really "easy" cases to decide. The criticism is that you think all or most cases can be answered only by reference to the law. You've disavowed that you think all cases have an "answer," but it is hard to reconcile that disavowal with many of the other things you've said, particularly when it comes to the possibility that judges can just "follow the law," independently of their own will.

It seems as though you've simply mistaken the criticism as attributing to you a position that it hasn't. So, when you think your critics are saying that you believe "every case has an answer," you understand them to be saying, "All cases can be resolved with 100% certainty." That is obviously not your view. But it is your view that, even when there is some or even great uncertainty, the judge is still (or ought to be) constrained to make a judgment that follows from what the law is. You describe such decision-making as within the realm of "hard cases" or "ambiguity," but it is still determinate.

And so what you mean by "hard cases" and "ambiguity" are just not what legal theorists mean (or at least, not what positivists mean), and it is (arguably) not what Obama means, either. I don't think Obama wants justices who come to some conclusion about the best legal argument and then to decide against that conclusion. He wants justices, when they are faced with genuine indeterminacy, which is to say with areas where there is no law, to make law in accordance with certain kinds of empathy-based values. That is a completely uncontroversial thing for a positivist to say.

Now maybe you just want to say that you haven't attempted to defend your jurisprudential views in this post or in most of the comments you've made here. You're just describing two different ways of envisioning the judicial function and what the source of people's disagreement is. But you've described that disagreement as centering around different ways of dealing with "ambiguity," when in fact what you've described is a difference between acknowledging that the law is indeterminate and treating the law as determinate. It is, in other words, an inaccurate way of describing the debate.

Prof. Kerr wrote:

My favorite Justices are probably the second Justice Harlan and Robert Jackson.

Interesting. If I may (recognizing that you have already spent what must be an enormous amount of time responding to comments in this thread), I would like to ask what you think of Justice Jackson's dissent in Brinegar:

if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Brinegar v. United States, 338 U.S. 160, 183 (1949).

Is this consistent with your concept of the proper judicial role? I am interested less in Justice Jackson's argument that the search for the kidnapped child might be reasonable (which is more a legal argument) than in his statement that he would "candidly strive mightily" to reach a certain result on one set of facts, but "should not strain" to reach a similar result in a case with different facts.

That fits with how I think judging often works and indeed must work -- the judge's overall intuitive assessment of the right result in the particular case feeds heavily into the way the judge approaches the case, including (for example) the amount of scrutiny that is given to precedent or other authority that might appear controlling at first glance.

And, based on that, I would want judges with "empathy," broadly defined -- I would say something like "a continuous awareness of the effect of judicial decisionmaking on the lives of individuals" -- because the presence or absence of that quality is going to affect which cases the judge thinks are worth doing that extra work. I'm curious whether you might agree, or think I'm misreading Justice Jackson, or perhaps think I'm reading him right and he just nodded in this instance.

It seems to me that many of Prof. Kerr's opponents are essentially saying that there's really no distinction between Rule-of-Law judges and Empathy judges. There's only one way to judge: recourse to personal values and experience when the law isn't clear, and that this is the empathy that Obama is talking about.

If that's the case, what is Obama complaining about? Obama recognizes a distinction, so who is the counterpart to the empathetic judge if not the character Prof. Kerr describes? If it's Alito, what's the difference between empathy and sympathy for the progressives' favored classes?

widget, Jackson's dissent in Brinegar is one of my all time favorites.

We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit.

Orin, if it is your position that judges can, completely consistent with their proper judicial function, reach entirely different conclusions about what the law requires, based on their own theoretical commitments, then I have to ask—what in the world are you complaining about?

Is that really all your position is? "To thine own self be true?" If it is, then why wouldn't you interpret Obama's "empathy" commitment as being a kind of relevant argument a judge may consider?

You compare the textualist to the purposivist. I want to nail down your view, so let's suppose they sit on a court together and hear the case of A v. B. The textualist considers the relevant texts from a textualist point of view and concludes that the arguments favor A, 65/35. The purposivist considers the relevant legal materials and concludes that the purpose underlying the statute favors B, 75/25. They each vote according to their evaluations of the arguments, based on what they take to be the relevant legal materials. Is it really your position that they are both correct?

I don't expect it to be, for reasons I've already outlined (and which you've chosen not to respond to). I'd expect your response to be something like:

"No. Judges need to consider purposivist arguments as well as textualist arguments; otherwise they are just not doing their job, as judges, to consider the arguments that are supported by the legally relevant materials. They might tend to favor some kinds of legal evidence over others (such as text over purpose), but in doing so they should follow the law of their circuit and of the Supreme Court on such matters and not their own personal preferences."

The point, Orin, is that my description of your position was of a normative position, and you've responded with a descriptive one. I'm not trying to attribute to you a position that asserts that all judges weigh all arguments the same way; I recognize that would be absurd. I think it is your position that you think that any judge, working within his or her proper role, using the correct legal reasoning and relying on the appropriate legal sources, will come to a single, correct answer about what the law requires in any given case, whether "easy" or "hard."

Nearly everything you've written on the matter here seems to suggest this is your position, again for reasons I've gone to some length to describe. But if it isn't, then I admit that I've overconstrued your position and apologize accordingly. Your position wouldn't be theoretically deficient in the way I've been describing. The problem with your position, instead, would be along a different road—we'd have to figure out why it's okay for a judge to be a "textualist" or a "purposivist" but not an "empath."

And don't think I won't turn this car around, Orin.

Orin writes:

This post is about the fact that there are two sides to a debate: am I correct that you agree with me that there are in fact two side to the debate, and the existence of the two sides nicely explains the debate over these issues? That is the point of the post ...

But to summarize his post, Orin concluded with the following assessment:

... 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.

Orin does not attempt to then describe how those who favor "judicial empowerment" might view the theorists in the former camp; he does not elucidate how they, conversely, might assess the damage that the proponents of "strict judicial weighing" could cause to the legal field, or to society. In other words, his conclusion speaks for one side (the side Orin happens to favor) and not the other.

But Orin feels free to tell his commenters here that his post principally lays out the terms of a debate for purposes of probing the issue neutrally. Anyone who sees an argument for or against the positions at hand, is misreading Orin.

Respectfully, I think that's hooey. You cannot possibly claim precise neutrality conclude a post about a difference in philosophy by speaking for the one side, but then not saying how the other side might answer those claims. Orin, I really do politely submit that you ought to reread your post with fresh eyes and judge whether it goes further than you thought it might.

For what it's worth, I find Orin's approach here illuminating. His philosophy seems to rest on the precision of precedent and the ability to draw ineluctable distinctions in law, and yet he has produced a post whose meaning and implications seem to be out of his own control or beyond his own intention. That might imply that in determining how to evaluate Orin's post, we have to weigh many things according to our own assumptions and beliefs, perhaps even to the point of disregarding his own well-meant disavowls. To fail to do this is to do a disservice to what Orin has actually written.

Perhaps this just means that an intentionlist and a purposivist approach to understanding the written word is incorrect -- I think Orin would agree with that. But does it also mean that, when you're faced with Orin's loud and clear statement of his meaning, and the post's actual range of assumptions and implications, commenters should feel free to mine from his post anything that they reasonably feel it contains. Given its inherent ambiguity.

Then, it's entirely possible I take that approach because it makes reading Orin's posts more personally gratifying. But on balance, I feel it's the more honest one.

There are, of course, many circumstances in which making the "legally correct" decision requires a judge to practice empathy. Criminal sentencing comes to mind. Weighing all the sentencing factors of 18 U.S.C. 3553 (which judges are legally required to do) is synonymous with deciding what degree of empathy to afford to the defendant.

For this reason, Obama's 2005 views of Justice Alito were rather prescient. As he showed in his Gall v. United States dissent, Alito has a certain lack of empathy that causes him to make bad legal decisions. Faced with a young defendant who made a terrible mistake to distribute drugs, repented, left the conspiracy voluntarily, and led an exemplary life ever since, Alito said that it was "unreasonable" for the district judge to give the defendant a break. This was a legally flawed decision, precisely because it lacked empathy.

Ox,

Maybe if we have a better sense of your views on those questions, we can engage with you more clearly. Right now, I think you're answers are elliptical and, frankly, somewhat evasive.

Ox, I have spent several hours of my time satisfying the curiosity of anonymous internet commenters as what I think, commenting as much as I can while also writing a draft of a paper this evening that is already late. Having devoted much of the evening to this, the idea that I am being "evasive" strikes me as frankly ridiculous.

So I read the post again, and I'm not convinced by the claim that this is simply an attempt at describing the current debate. With almost no critical attention to the "judicial weighing" position, you describe Obama's position as courting lawlessness and inviting judges to ignore the law. Maybe that passes for a "descriptive" account in the blogosphere, but it's hard to come away from your post with anything but the conclusion that you clearly favor the "judicial weighing" position and reject the pragmatist (Posnerian) view you ascribe to Obama.

But you can set us straight -- are we wrong about that? If so, we can live with that.

But we have this suspicion, amply justified by the post above, that there is a criticism of Obama here, and one that attempts to refute the claim that judges ought to be empathetic. Conservatives are clearly having a hard time figuring out how to respond to this view. In part, they're hemmed in by their own rhetoric about compassion. So it's interesting to see how the argument is evolving. This post feels like a test balloon -- try out the umpire view, and see if it will fly.

In any event, if your account is descriptive, then it's still not persuasive, nor was it charitable to Obama. For reasons I mentioned above (and for which you don't need to write a law review article to address), there is a much more plausible way to understand what he said. And if that's the case, it suggests that the debate about the courts is not a debate about theories of judicial decision-making, but rather a debate about substantive values, which is what many of the comments in this thread have been saying. That point, I think, is still unanswered.

Ox,

I realize that you think your criticisms are valid, and that you would like me to answer all of your questions. However, your evaluation of the quality of the commentary and my evaluation of the quality of the commentary are different.

I'll tell you what: Send me an e-mail with your real name, and I'll see if I can find some time to answer your questions one on one. Interested?

Thanks for the offer, which is very kind. You can't answer everyone's questions all the time -- that's perfectly understandable. Without seeming ungrateful (at least I hope not), I'm happy to let the comments here speak for themselves.

First, with respect to judging based on the weight of the law, in these days of sponsored research and trade organization briefs, money is weight. If anything is clear from our recent economic woes, what's good for Wall Street isn't necessarily what's good for the country.

Second, it is disingenuous to ignore the relationship between legal doctrine and the social/cultural wars that have pervaded the US since the '60s. The Reagan Justice Department and its offspring were explicitly counterrevolutionary vis-a-vis the Warren Court. Now that they have achieved policy victory in rolling criminal and employment law back to the 18th Century, these same people look to lock in their victories by limiting the ability of new Justices to look at policies at their roots rather than their margins.

Third, to the extent empathy means comparing the impact of competing outcomes on the welfare of the parties and those similarly situated, I don't see any reason why this approach should be any less valid than an approach which prefers reliance on private markets to governmental regulation or individualist libertarianism to social welfare.

The Constitution does not enshrine the views of Crime &Consequences.

People are subjective beings and will approach any job subjectively. They cannot help it; that's just part of being human beings. People are incapable of being impartially objective. Those who think that they are are fooling themselves.

Judges and Justices are no different. They read the law in their own way. They weigh the prior rulings in their own way. They have their own, perhaps subconscious, ways of deciding when stare decisis outweighs their opinion that the ruling precedent is wrong and when to overturn, in whole or in part, prior precedents. They have their own overarching ideas of what law is meant to do or be and whom it ought to protect.

In short, texts have no meaning apart from authors and readers. It is up to individuals, authors and readers, to give meaning to texts.

It is the same with facts of cases. Different Justices will make decisions differently based upon which incidents in the case they consider to be relevant facts and which they do not consider relevant or which facts they consider to be more important and which less.

For this reason, there can be no objectively "right" legal decisions because there is no objective being to determine which decision is right. Was the decision in Dred Scott right or wrong? Almost all today would say that it was wrong but why? Because we all view slavery to be a morally repugnant. Was the Plessy decision right or wrong? I submit that we view it as wrong because the view that all people should be treated equally in the law and, in society, as equally as is humanly possible. We may dress up our objections to Scott and Plessy in thoroughly legal and constitutional terms and arguments but I submit that those are merely justifications for our own views of the issues at hand.

I believe research into the decision-making process within the brain works exactly this way: we decide what to do and then work up our reasons for the decisions we have made and then convince ourselves that we made the decision based upon our subsequently made up rationale. But how and why did we actually make the decision? Who knows? Likely we made the decision based upon some set of deeply seated and unconscious feelings that we will benefit most from the decision that we made. The rationale is just the window dressing we make up to convince others that we made the right decision.

I don't think empathy is the right word for this process unless it would be empathy for one's self.

I think that the same applies to judicial appointments. I think it's clear (speaking utterly subjectively) that Obama wants Justices and judges whose subconscious self-regard will lead them to rule for the downtrodden and distressed, minorities and the politically weak whenever the judge or Justice can think up a convincing legal and constitutional argument for that decision and he will appoint the sort of people who are adept at coming up with persuasive arguments in favor of those sorts of defendants.

Whether he will be successful is pretty much a crap-shoot. Presidents are not always happy with their judicial appointments once they are seated.

Anyway, that's my cynical opinion.

Egad, Professor, I love ya, but this is a mess! More formally, I normally associate your posts with genuine insight and clear logic, so I am surprised to see here several uncharacteristic gaps in your thinking.

As I understand it it can all be sorted out, but you are - I suspect unintentionally and in good faith - offering a bit of a straw man due to your not distinguishing a few key concepts, such as prudentialism versus constitutional judgment, empathy for a legal injustice versus sympathy resulting in bias, and a judge versus a justice.

I pull these concepts apart to the best of my understanding below, focusing on the text of President Obama which Professor Kerr quotes, and I think the result is a more accurate picture of what President Obama may mean by "empathy." I do not expect anyone to read all of it, but voices of agreement or scorn are always welcome:

1. prudentialism / pragmatism v. constitutional judgment - On the one hand, as Professor Kerr says, empathy can manifest itself because one is a pragmatist, a la Judge Postner, and thus comfortable applying one's own view of how a case should come out irrespective of the law. This practice, standing alone, can easily be attacked as illegitimate, so, as one sees in Judge Posner's writings, its advocates usually try to limit or bolster it in some way, e.g., by calling for it only when the governing law seems uncertain by a certain degree.

On the other hand, an empathy informed judgment can, by many accounts, legitimately manifest itself as an aid in navigating the modalities of constitutional interpretation (in the words of Bobbitt and Amar; the conventions of constitutional discourse in those of John Hart Ely).

This starting point for why justices must often make values-based judgments is that there is more than one type of legitimate constitutional argument so there is often more than one legitimate constitutional answer - you can make a legitimate argument based on Posnerian prudentialism, but also the plain meaning of the text, the original intent of the ratifiers, precedent, and the structural relationships between the different branches of government, among others. Sometimes these modalities lead to the same conclusion, but sometimes they don't. One of the tools that can legitimately be used to navigate these conflicts is values-based judgment, informed by one's sense of justice and empathy.

For example, if you were arguing a First Amendment free speech case on behalf of a state executive official being sued under a federal cause of action, you may argue for the protection of his speech based on text ("no law" means "no law"), recent precedent, or pragmatism (the negative effect of stifling speech by this group). The other side may cast doubt on your position by drawing on the intent of the ratifiers (debate from the ratifying conventions showing that your client's acts were not then considered "speech") and the constitution's structural relationships (if this is an area in which the Constitution seems to contemplate federal monitoring of state officials), in addition to competing precedent and pragmatic arguments.

How does a justice decide for whom to rule? He can begin with "careful judicial weighing," crystallizing the issues, discarding inferior arguments, and making close calls on those issues that lean even just 51/49 either way. At the end, though, the modalities may simply contradict each other - recent precedent and a plain reading of the text may lean one way, while the plain intent of the founders and the demands of federalism may lean another. At that point further weighing is like comparing apples and unicycles - it doesn't advance the analysis. Ultimately, one has to make a judgment favoring one side and set of arguments over another in this particular case. This judgment can be utilitarian, but for most justices it will be based, at least in part, on their sense of justice, involving "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 this aspect of Constitutional decision-making, empathy can legitimately influence the decision.

My interpretation here is supported by a close reading of the text (of what President Obama calls for). While the Professor clearly seems to be critiquing prudentialism - hence the analogy to Judge Posner - President Obama's examples seem more likely to fall into the second category I describe:

affirmative action [as a] response to the history of discrimination in this country, 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...

None of those examples matches the paradigm of a case likely to yield a clear - if close - legal answer to be nonetheless cast aside by the empathetic justice. Instead, they seem likely to yield legitimate arguments on both sides, and after all "judicial weighing" is done, at least some of them seem likely to yield convincing legitimate arguments simply sounding in different modalities. The ultimate decision will thus likely come down to a justice's value-judgment, perhaps informed by empathy, but in any case a far cry from the Posnerian close-case grab for power.

2. legal empathy versus bias - I follow the Professor in using numerous synonyms for "empathy," but one which only serves to cloud the discussion because it is unquestionably illegitimate is "bias."

As pointed out above, "empathy" is simply "the ability to project oneself emotionally into the state of another." It is therefore party neutral, but Professor Kerr interprets President Obama, perhaps not unfairly, as especially desiring a judge who feels empathy for the "weak" or "powerless." As I suggest, there are numerous ways in which this empathy could legitimately manifest itself and therefore, for a President, be desirable. It cannot, though, make a justice biased, or non-neutral as to the parties who would appear before him.

How can empathy influence his decisions other than through bias? President Obama's critique of Justice Alito (making no judgment as to its accuracy), in my opinion, provides two possibilities:

He 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.

First and most obviously, what President Obama describes is not empathy but bias because the judgments are entirely pretextual. The deciding principle is simply the parties themselves (if there is a claim between X and Y, Y wins), and legitimate arguments are used only to hide that fact.

To be empathic, on the other hand, does not mean to abandon the accepted modes of legitimate decision-making. Empathy and all similar values are only legitimate if they do not alter the process of decision-making through the accepted modalities. So, empathy can compel one to investigate what actually are an average person's "reasonable expectations" with regards to an arbitration agreement and to use those expectations as the new substance of the legal standard. It cannot compel one to drop those standards altogether.

The reason this is so is seen in the second possibility, that in the President's description the judge does not seem to be seeking to remedy any legal harm; such a desire to tilt the legal scales in one party's favor to make up for an unrelated harm is sympathy, not empathy. Empathy allows one to appreciate, as a basic example, that what seems like reasonable bail can be a ruinous demand to a poor defendant, and to change one's order accordingly. The injustice for which one feels empathy, though, is still a legal one. Its recognition is entirely distinct from the straw man fear that a judge will feel sympathy for one side and tilt the scales for him, committing a legal injustice himself in the process.

I find support for my limited conception of empathy in the President's examples, referred to by the Professor. President Obama describes difficult legal decisions which, one can legitimately argue, would be better decided if the arbiter could fully appreciate the impact of his decision for the parties and those similarly situated. To take the easy example of abortion, or as he describes it, the "right of women to control their reproductive decisions," one would hope that one would not issue an order denying women abortions without appreciating the burden one is placing on them, or, alternatively, an order permitting widespread abortion access without appreciating that much of your society will believe it now lives in a state which authorizes a form of murder.

In any case, nowhere does President Obama mention sympathetic defendants or victims, the need for the courts to "do something" to help people, that courts should disregard technicalities or formalism in favor helping out the party who really needs it, or any other language suggesting that he would support empathy manifesting itself as bias. The only way that the fears are true - that his description could yield an arbiter matching his negative description of Justice Alito - is if he does not mean what he says and is actually speaking in "code," a possibility I won't consider here as I've seen no evidence to support it.

3. Different types of legal ambiguity - a decision can invite a value judgment because of ambiguity a) as to the correct legal outcome- the Professor's focus b) in the called for legal standards- the focus of several commenters c) the consequences of a ruling- can be quite important in the Supreme Court context.

Point one above, like most of Professor Kerr's post, focuses on ambiguity in (a) the correct legal outcome; I hope I have demonstrated that there are at least some circumstances in which value judgments are legitimate and necessary for resolving such ambiguity. The need for value judgments to resolve the legal ambiguity in (b) - legal standards such as "plausible," "reasonable," and "cruel" - is described in other comments above.

I added (c) based on some reading I happened to be doing in Professor Kerr's area of expertise, criminal procedure, when I encountered this post. In the development and then limiting of certain constitutional protections, "empathy" seemed to play a large and legitimate role, particularly with regards to race in the development of certain of the protective doctrines and then the spike in violent crime rates in the Burger Court retrenchment.

I saw "empathy" in both of these instances as helping to resolve ambiguity in the effects of the Court's judgments. In the development of the protections, the law supporting selective incorporation was thin to say the least, and prudentially no one knew where the decisions - and the entire Civil Rights Movement - would lead. Throughout, many commenters predicted massive social unrest if the Warren Court continued, and some of that unrest actually occurred. Nonetheless, the Court's empathy for the plight of African-Americans helped compel them to overcome these fears and ultimately make the doctrinal leaps which are still with us today.

In the second instance, the Court faced a similar ambiguity as to the result of their decisions - some amount of injustice, some percentage of individuals denied their constitutional rights, was almost certain to result, and they couldn't really know how much. However, the justice's empathy for a nation rocked by an historic crime wave helped convince them to take the risk and allow a certain lessening of constitutional protections that, again, is still with us today.

In both cases, I would construe the Court's "empathy" as entirely legitimate, and I would understand if President Obama wanted a justice who would feel such "empathy."

4. a judge v a justice - this final distinction is perhaps the simplest, and its absence from the Professor's post is responsible for a lot of the confusion in the comments. As I have pointed out, Professor Kerr's paradigmatic example seems to be a judge tipping the scales to decide a case in favor of a side he prefers for entirely non-legal sympathetic reasons. President Obama, though, is discussing preferences in Supreme Court justices, the only arbiters for whom ~5% of the cases is likely to lead to an ambiguous result. This is significant for the reasons above - no other court has the discretion to constantly make constitutional judgments and to redefine the content of ambiguous legal standards. As well, it matters because "empathy" can play an additional legitimate role for justices that it cannot for judges.

The reason is because "empathy" can vary not only one's decisions but the issues on which one chooses to focus. Justices, of course, have discretionary jurisdiction and great latitude, over the course of their careers, to consciously render developments in certain areas of the law (e.g., Justice Scalia's recent changes to the confrontation clause). When a President is considering a Supreme Court candidate, therefore, he may find the issues the candidate is likely to focus on just as important as his actual decisions, and the candidate's preferences may obviously be based, in part, on empathy.

Obviously, as a limit, this empathy should be based on a legal injustice and not a general one. President Obama's comment on this point was criticized during the campaign as being socialist (please no commentary if he actually is or not), but he was correct when he said that Civil Rights workers seeking greater equality in wealth and income needed to adjust their focus away from the Courts and towards the legislatures - if one believes that the Lion's share of the strictly legal injustices have been resolved, the Court is the incorrect body through which to pursue a redistributive or other non-legal agenda. Other legal issues today obviously exist, and the next justice's empathy for specific causes or groups could play a role in determining whether they receive attention or not.

--

In all, if one pulls apart the threads of the Professor's post, one sees that the prudentialism which he rightfully criticizes is likely quite distinct from the empathy to which President Obama refers. President Obama does seem to posit greater judicial freedom than Professor Kerr is comfortable with in that he believes that judges will have to make a value judgment in a significant proportion of cases. However, his position is solidly grounded in mainstream academic opinion, typified by Bobbitt and Amar, amongst others, and this freedom is far from the lawlessness or ability to make a prudential choice in every close case which the Professor seems to fear.

I apologize for the long post - I respect the Professor and normally appreciate his opinions quite a lot, so I hope that the length of my comment is taken as a testament to that respect and not in any way negative.

To conservatives, consider this empathy example:

The evidence is overwhelming that a defendant raped and murder the children he is charged with raping and killing. But he has a strong, but not unassailable argument that the state violated his state constitutional speedy trial rights. Assume that his argument is stronger than the prosecutor's response. The remedy for speedy trial violations is discharge and a bar on re-prosecution.

When ruling on the speedy trial motion, should the judge consider the ramifications of immunizing a child rapist/murderer from prosecution and releasing him into the community?

Professor Kerr,

I want to thank you for the great post and responses. In particular, I think it's telling that none of your detractors have responded to your invocation of the Ledbetter case. That case was about as classic an example of deciding based on what the law is vs. what (some believe) the law should be. Obama's invocation of that case suggests that when he says "empathy" he means either "bias" or "sympathy," but not "empathy." Many of your detractors, by not discussing this case, ignore that point.

I wanted to amplify on one point that I think is important - empathy being equated with lawlessness. (And please tell me if you agree.) The Supreme Court has two roles: (1) decide the case before them; (2) set out rules for the lower courts to decide cases by. As a practical matter, empathy, as a rule, does not help with #2 at all, assuming a Justice were inclined to baldly indicate that that was the decision-making process. Scalia, for example, is a big fan of setting guidelines (except in Heller) to provide the lower courts with decision-making tools. I recall a case where he tried to make history and tradition the basis for deciding SDP cases, but that at least some other Justices refused to join that footnote. Unfortunately, I don't remember the case offhand. If Scalia had five votes for that position, it would have set a rule for how to decide similar cases. If future Justice X were able to get five votes for a rule of empathy (instead of a rule of history and tradition), it would create a guideline for helping to decide cases.

Some people complain, however, that Scalia's approach depends on the history and tradition that you are consulting, so it does not really provide much of a guideline. There may be some merit to this complaint. It seems to me that a rule of empathy provides even less guidance.

So while a rule of empathy might help decide individual cases (I have my doubts, but I'll grant it arguendo), I don't think it would do a good job fulfilling the USSC's other role - setting guidance for lower courts.

Professor Kerr - I look forward to any comments of yours on this.

having just sampled comments, isn't the role of empathy and the protection of the down trodden the job of the legislative branch? In 50/50 cases the ruling should match as close to possible the direction a self governing populace a possible. In the case above my ruling would be determined by why justice was delayed. If due to prosecution delaying to tip the scales in their favor I would turn the rapist loose. Sending the message that the accused rights cannot be abused. If the delay was a sympton of the legal system as a whole the conviction stands. The case BO stated, the sexual discrimination case that failed to meet statute of limitations There is no question that the court was correct to not hear the case. IF the statute of limitations is to constrictive it is the job of the legislature to fix that Judges have absolutley no constitutional direction as to the "proper" length of statute of limitations

Ariel:

As someone who teaches Employment Discrimination, I'm baffled by the claim that the Ledbetter case had a clearly correct conclusion based on traditional legal tools. There was precedent going each way, and administrative rulings which seemed to favor the plaintiff. It's hard for me to see that the statutory language clearly compelled the result, and there is a decent purpovist argument that the majority was wrong (this would make a broad swath of pay discrimination claims almost impossible to bring, in the real world); although I can see arguments, including a purpovist one, on the other side.

I don't mean to argue that Ledbetter was clearly wrongly decided either. Just that I think it is, in fact, a decent example of where the traditional legal tools are inconclusive. Or put another way, it's not a good example, IMHO, of a case where the traditional legal tools do get you clearly to one side, and therefore the folks who disagree are using some form of lawless empathy. (Although I do note Alito seems to have once again sided with the employer).

Orin: Were you really posting comments on this thread after 2:00 a.m.? Please tell me you're on the West coast.

Orin, you are by far my favorite VC blogger for many reasons, some of which I've mentioned before. One reason is your approach to comments: moderated, prudent, good humored, intellectual. After reading your post, I then read through this whole comment thread (which I usually don't do). This thread was one of the longest, but also one of the most civil and substantive threads I have ever read, which is not necessarily typical of many VC comment threads. What also was not typical was a certain surliness that you expressed in the comments. While I was very interested in your responses (I think it is great when the blogger responds to questions in comments or comments on comments), the tone of your comments seemed somewhat out of character for you. I hope everything is okay with you.

rosetta's stones:


Empathy and all similar values...



And to flyspeck your statement just a bit more, empathy is not a value, it's more of an emotion.

Thanks for actually reading that so closely. You're entirely correct, a pure misuse of words on my part, and I hope that my use in the next sentence shows that I agree with your point - "empathy" can legitimately manifest itself in the decision-making process, but, per the Professor's examples, it cannot take the place of that process lest it become simple sympathy and bias.

Orin,

I agree with Andy. You are my favorite VC blogger and I truly enjoy your posts, whether I agree or disagree with you. You are always very civil, open-minded, and often force me to re-evaluate my views. Your comments in this thread are not characteristic of you. Perhaps you were ticked off by perceived hostility of your detractors, but I have to say that, to my eye at least, the tone of 99% of your opponents was very civil and their arguments were well thought-out. It seems to me that your position is that your opponents attacked a straw man and unfairly ascribed you views that you either do not hold or did not have a chance to take a well reasoned position on. But, I submit, that even if there was a bit of a straw man, it was caused to a large extent by your own post. You say that all you did was to describe two competing theories on roles of judges. Respectfully, this is not how your post comes across. While it is true that you didn't expressly state which position you favor, there can be no doubt about this from your post. The way you characterize Obama's position and, especially, the ending of your post, suggest very very strongly that you disagree with what you perceive to be Obama/Posner view on the role of judges. A lot of commenters, me included, took exception to 1) the way you describe Obama's position and 2) what we perceived to be your view on judges' role.

I do not think anyone intended to mischaracterize your position. On the contrary, your post generated a very substantive and engaging debate on a very serious legal question. It would be thrilling if you could provide substantive rebuttals to valid criticisms.

I guess the main substantive criticism is that if you think that there are cases when there is no "correct" legal answer (because different valid approaches, e.g. textualism, purpositivism lead to equally valid results), then what is the problem with using empathy as one of the valid approaches? Specifically, why an approach that takes into account empathy (e.g. in Ledbetter case) is not valid while some other legal approach is valid?

If, on the other hand, you think that in 99.99% of the cases there is one "correct" legal answer that may be arrived at using solely legal approaches, then this is where there's much of the disagreement on this thread.

I thank you very much for posting on this blog and hope that you continue doing so in the future.

I expect Messrs. Cheney, Addington, Bybee, Yoo, Bradbury and others will be hoping for at least five Supreme Court justices with empathy.

All nine Supreme Court justices should have empathy for lawyers who had to interpret an unfamiliar part of the law under time pressure for a high-profile client, with much riding on their interpretation. So I'd say Bybee, Yoo, et al. were in good shape, empathy-wise.

That's pure class Professor, and I mean that.

Many thanks for all you do.

So this class of cases is extremely small, particularly for the Supreme Court, which is generally concerned with law, not fact.

Quite the opposite -- cases that get the Supreme Court are the ones where the loser in lower court thinks they have a good case. The easiest way to get to SCOTUS is a circuit split, which practically by definition means that the case is so close that different panels of judges could rule differently.

FWIW, I don't think Prof. Kerr's initial post was offensive or particularly difficult to understand.

Also, although this comment thread seems to have "jumped the shark" some time ago, I thought I would point out something about Obama's comments. He says:

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.

The legal questions he cites are not examples of necessarily difficult cases; they are examples of especially controversial ones, cases in which the temptation is greatest for a judge to allow her policy preferences, ideology, or empathy to determine the result. For Obama, an exercise in empathy becomes legitimate where it is most desired. This illustrates the problem I've tried to point out with the "judicial empowerment view," a problem that I haven't seen anyone adequately address. If one accepts the view that there is not always a best answer or a way of knowing what the best answer is, how can one objectively determine when there is enough legal ambiguity to legimitately make a choice based on values such as empathy? It's question-begging: judges in the "judicial empowerment" camp inevitably will allow their extra-legal values to determine when the exercise of those values is appropriate.

judges in the "judicial empowerment" camp inevitably will allow their extra-legal values to determine when the exercise of those values is appropriate.

Considering their rulings led to completely different outcomes, which court was more influenced by their extra-legal values: The Bowers v. Hardwick Court or the Lawrence v. Texas Court?

Tony Tutins:

I expect Messrs. Cheney, Addington, Bybee, Yoo, Bradbury and others will be hoping for at least five Supreme Court justices with empathy.

All nine Supreme Court justices should have empathy for lawyers who had to interpret an unfamiliar part of the law under time pressure for a high-profile client, with much riding on their interpretation. So I'd say Bybee, Yoo, et al. were in good shape, empathy-wise.

Tony, it seems that a goodly number on the SCOTUS have found more empathy for the jihadis than the people who just happen to share their profession, no?

Unfortunately.

To conservatives, consider this empathy example:

The evidence is overwhelming that a defendant raped and murder the children he is charged with raping and killing. But he has a strong, but not unassailable argument that the state violated his state constitutional speedy trial rights. Assume that his argument is stronger than the prosecutor's response. The remedy for speedy trial violations is discharge and a bar on re-prosecution.

When ruling on the speedy trial motion, should the judge consider the ramifications of immunizing a child rapist/murderer from prosecution and releasing him into the community?

No. There is a right. It was violated. There is a prescribed remedy.

Rights cease to be rights when the remedies for their violations are ignored.

Nick

But doesn't that just illustrate Orin's point that the "judicial empowerment" view is present among "liberal" and "conservative" judges?

If you accept that, we have no argument.

I was thinking that the Chief was influenced by his extra-legal values when he referenced "millennia of moral teaching" to justify not finding a fundamental right to sodomy, in his Bowers concurrence.

Not all courts are created equal. The U.S. Supreme Court affirms by inaction, about 98% of the matters referred to it. A large share of the remaining 2% involve questions upon which there are well developed splits of authority involving circuits and/or state supreme courts, or cases of first impression on direct review.

While many cases before trial courts or on appellate cases that are direct appeals will have easy answers, almost by definition, the cases that the U.S. hears on the merits are hard cases. Also, because it is at the top of the heap in the judicial system, no lower court precedents are binding upon it. The ratio of merely persausive to authoritative precedent is higher in the U.S. Supreme Court than in any other venue, and stare decisis applies with less force in the U.S. Supreme Court (which is also the only safety valve to correct mistaken constitutional precedents short of a near impossible to adopt U.S. Constitutional Amendment in the system).

It follows that what makes a good U.S. Supreme Court justice is different than what makes a good lower court judge. Indeed, most countries have constitutional courts whose duties overlap heavily with those of the U.S. Supreme Court, whose members are often chosen completely from outside the judiciary and sometimes even outside the practicing bar, in a far more political manner than other judges.

(The same is true to a great extent of state supreme court judges who have been delegated the duty of maintaining and developing common law jurisprudence in the Anglo-American system.)

The wonder is not that so many argued U.S. Supreme Court cases are so close and discretionary, but that so few are decided by close margins.

Orin:

Thanks for your responses. I'd say the post might not have perfectly expressed what you wanted to say, but its very, ah, ambiguity, lead to a very fruitful thread.

Rock:

Of curiosity, do you mean to suggest that the Bowers dissent was feeble because it had little or insufficient grounding in law?

Joseph Slater,

I'll defer to your judgment on whether the Ledbetter case was close or not. I'm not involved in employment law, I haven't read the briefs, or any of the lower court / administrative hearing, which you have, so you are certainly much more knowledgeable about the case than I am. From the little that I know (skimming the opinions), it seemed much clearer than you described.

I've never heard of a statute of limitations running not from the time of the event but from the time of the latest consequence of the event. For example, if I get him in an accident, and twenty years later slip a disc as a result of the back pain from the accident, I'm pretty sure I'm out of luck for the slipped disc. But like I said, this isn't my area, so if I'm misrepresenting the degree of clarity here, I'm happy to be corrected.

Sorry for the delayed response, my day job kept me busy.

Thank you for a good post; the quality of the comment thread is, as always, largely the responsibility of the commentators. I fear many people are used to essays that are designed to make a partisan point, even if subtly, and thus have a tendency to assume that there is one in everything they read.