The Washington Post tells me that in today’s hearing, Elana Kagan “sidesteps empathy question, says ‘it’s law all the way down,’” which leads the reporter, Paul Kane, to say “So much for the empathy standard.”
I know some people who will be disappointed. The American people. About 68% of them, to be precise. That is the percentage who said in a 2009 survey that it was “very important” for Supreme Court justices to “be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Only one other quality out of a list of 12—“Uphold the values of those who wrote the U.S. constitution long ago”—was judged very important by more respondents (74%). Only 8% of the sample said that empathy was not important at all. Empathy also attracted the support of both parties: 77% of Democrats and 61% of Republicans said that it was very important.
Relatedly, almost two-thirds of the public (61%) also believes that defending the powerless is a very important characteristic in a Supreme Court judge (“Be especially concerned about protecting people without power from people and groups with power”).
Gibson offers some more details about how different attributes of justices are linked in people’s minds:
…strong correlations are observed between the empathy expectation and the items about protecting people without power, listening to people when making decisions and making fair, not just legal, decisions. Clearly, these expectations reflect a contextualized view of judging, one in which strict legality is expected to take a back seat to fairness.
As the same time, however, “empathy” seems not to be a code word for any sort of reckless disregard of the law. Those who emphasize empathy as a judicial characteristic are no more and no less likely to expect that judges should uphold the framers’ values, respect existing decisions, bring partisanship to judging or strictly follow the law. From the point of view of the American people, empathy most likely means to exercise the discretion available within law – discretion that is often quite broad – in favor of fairness for ordinary people. I would not be surprised if President Obama held a similar view of empathy.
Moreover, a desire for empathy is actually more prevalent among those who know something about the Court:
Interestingly, those more knowledgeable about the Supreme Court (a six-item index) are more likely to emphasize empathy, so this view of judging is not confined to the know-nothing segment of the American people. Those more knowledgeable about the Supreme Court are also less likely to emphasize legalistic decision making (strictly following existing law). The traditional view that judges can or should merely “implement the law” is unpersuasive to those understanding the most about the Court.
See also Gibson’s earlier piece in which he finds that more Americans prefer judicial activism to strict constructionism. Supporters of empathy also tend to support activism.
To be sure, one can debate the merits of empathy and defending the little guy as lodestars of judicial philosophy. But let’s be clear: in the abstract, they are very popular.