'Empathy' And The Court

Bill Murchison
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Posted: May 05, 2009 12:01 AM

The President wants an empathetic jurist to replace David Souter on the U.S. Supreme Court. He will likely get such a one.

What the country will get in that event is one more senator or cabinet member -- as straw boss, head knocker, high and mighty arbiter of high and mighty matters. A sort of modern Roman consul, exhibited to us as on a balcony, awaiting our cheers or boos but enjoying inner serenity all the same; the serenity that comes of knowing -- yaaah, yaaah, yaaaah -- can't touch me, I'm the judge. Though I do feel your pain.

As Barack Obama, who will send the new lawgiver's name to a Democratic Senate for automatic ratification, gave us to know last week, "[J]ustice isn't about some abstract legal theory. It's also about how laws affect the daily activities of people's lives -- whether they can make a living, care for their families, whether they feel safer in their homes and welcome in their own nation." An empathetic justice, by Obama's reckoning, takes all those considerations into account -- then, with a sweep of the hand, hands down The Law.

That's leaving aside a couple of things our constitutional law professor-turned-national CEO doesn't acknowledge:

One man's "empathetic" judge is another man's idea of Caesar in a long black robe.

Some "abstract legal theories" make perfect sense, such as that the people's will gets a better shake normally from the people's elected representatives than from some board of human divinities accountable to no one for their motives and actions.

The national argument that commences as soon Obama names somebody to the high court is painfully familiar. We have it every time a new justice is named -- Bork, Souter, Thomas, Ginsberg, and so on.

The division that one of these judicial tiffs occasions among us proceeds from the arrogance peculiar to the unelected judge who sees his essential mission as prophetic in character -- designed to rattle society and shake up things the judge sees as needing shake-up.

Chief Justice Earl Warren was master of the art. The Warren Court, as the U.S. Supreme Court came to be known during and after the former California governor's tenure, didn't give much of a rip for existing arrangements or the subtleties of temperate reform.

Here was how things needed doing. So do it! the justices whispered sweetly. The rights of criminal suspects were broadened; acknowledgements of religious faith in public places got squeezed out.

Roe v. Wade -- not Brown v. Board of Education -- is the Warren court's essential legacy. Seven empathetic justices saw the laws of the states as impinging on a woman's right "to choose." And so the court laid down a national code regarding abortion rights.

Here was how it was. We were all to get used to it. Except that we still haven't gotten used to it, 36 years after Roe, and probably never will, given the life-and-death stakes involved.

An "empathetic" judge who underestimates the power of ideas he opposes, stirs up the hornets and wasps. It was a strange kind of "empathy" for the court to exhibit a few years ago when it struck down the Texas sodomy law, helping thereby to pave the way for the "gay marriage" controversies now roiling society.

Traditional moral and religious convictions enjoy no right to "empathy"? That's an odd one. An empathetic court can make up the law as it goes? Odder still.

Brace for empathy. It's coming. But so are more of the kinds of quarrels and divisions that empathetic jurists like Souter -- or, worse, John Paul Stevens, who remains on the court, still legislating -- can cause to break open.

The modern Supreme Court is an agent of disruption rather than harmony, rupture rather than healing. The wise justice -- Nino Scalia is one model -- looks at the law, goes with the intent of those who passed it, leaves it to later lawmakers to change or abandon it. It's what judging used mainly to be about -- before the coming of empathy.