‘Empathy’ and the court

William Murchison's picture

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.

[William Murchison is the author of “Mortal Follies: Episcopalians and the Crisis of Mainline Christianity.”] COPYRIGHT 2009 CREATORS SYNDICATE, INC.

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SPQR's picture
Submitted by SPQR on Sun, 05/10/2009 - 8:37am.

Murchison is sort of a "my way or the highway" kind of a guy. He appears to exude a type of opinionated fanatic intolerance. Just look at those close set little beady eyes! Would he be a teacher of how to think or what to think? Read Sowell. It's an interesting contrast sans the social conservatism. He seems to be more of a big picture type of a guy.

Main Stream's picture
Submitted by Main Stream on Fri, 05/08/2009 - 10:39am.

"Traditional moral and religious convictions enjoy no right to “empathy”?"

No, they don't. Not when those "laws" infringe on a person's right to control their own reproductive decisions. Or, in the case of Texas sodomy law you mentioned, to love each other behind closed doors, in their own way - it's none of your business you perv.

Murchison and the social conservatives are so afraid that people will actually have more control over their personal lives with a new Judge on the bench. A country should not legislate a woman's uterus or the adult bedroom. Social conservatives are all for less government and intrusion into their lives, unless the situation at hand deals with women or gays. They sound just like the Taliban.

S. Lindsey's picture
Submitted by S. Lindsey on Fri, 05/08/2009 - 3:37pm.

are just that.. Points of View.. Not defending Murchison or yours for that matter.. I have a different issue..
Where in the Constitution or any where else for that matter.. Does it say that Supreme Court Judges must be "empathic" to certain groups.. THAT IS NOT THE FUNCTION OF THE COURTS... Political activist have no room on the courts for their views..
YOU SCREAM.. "STAY OUT OF MY UTERUS" and I personnally have no problem with doing that..Sticking out tongue.. but that works only when they favor YOUR views.. you are quite willing to have them back your political views, but GOD help them if they go a different direction..
You can't have it both ways but being a Liberal I guess you can..

I will not lower my standards.. So UP YOURS.. Evil


Cyclist's picture
Submitted by Cyclist on Fri, 05/08/2009 - 10:43am.

one. Smiling Now, about those tight fitting riding shorts..........
Caution - The Surgeon General has determined that constant blogging is an addiction that can cause a sedentary life style.

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