Ed is certainly correct to find fault with Ruth Marcus’s defense of “empathy” as a valuable quality in judicial decision-making. (For more on this subject, though not in direct response to Marcus, see Thomas Sowell and William Murchison.) Let me add a little more to his cogent criticism.
Marcus writes: “Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent.” And then she immediately adds:
Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That’s not possible — not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his — or her — life experiences, conception of the role of the courts and, as Obama put it, “broader vision of what America should be.”
Of course judgment is not mere calculation. But it is disciplined thinking, something no computer can or ever will do, and Marcus and Obama are, at bottom, opposed to discipline. A proper “conception of the role of courts” would rule out of order any place in judicial decision-making for what the president calls a “broader vision of what America should be.” Beyond the bounds of the Constitution, statutes, and precedents, there is nothing judges have to say about the great Oughts of American life that the rest of us are obliged to pay the slightest heed. We don’t put them on the bench for their views on such matters, and heaven knows we can’t easily remove them for their bloviations on such subjects.
Marcus’s argument absolutely implodes when she gets to this: “Possessing the ‘empathy to recognize’ [another Obama phrase] should not determine the outcome of a case, but it should inform the judge’s approach.” Then Marcus immediately adduces the example of Bowers v. Hardwick, the 1986 decision upholding a state anti-sodomy statute, and retails the familiar story that Justice Lewis Powell, who cast the deciding vote in Bowers, came to regret his vote later, and said that he had “never met a homosexual.” Marcus suggests that if only Powell “had known men and women in same-sex relationships,” the case might have come out differently, and the law would have lived happily ever after. In other words, she dearly wishes–flatly contrary to her reservation a moment earlier–that Powell’s circle of acquaintance had been wider and had “determine[d] the outcome of the case.”
This story has always struck me as a real self-inflicted knock against Justice Powell’s reputation as an intelligent man. Did he really think that if he had known some homosexuals, he might have been led to view the meaning of the due process clause of the Fourteenth Amendment differently? If so, then it really was time for him to go–he retired a year later–for he had quite forgotten (if he ever knew) the duty of a judge.
And Ruth Marcus’s retailing of this foolish little story is insulting to every judge sitting on the bench today. Does she think that Justice Scalia voted as he did in Romer v. Evans and Lawrence v. Texas because he’s never met anyone homosexual? For that matter, does she think that Justice Kennedy, who wrote for the Court in both those cases, said what he said about the Constitution because he does know some? Evidently: “You got the sense [in reading Lawrence] that Kennedy actually knew people in such relationships,” she writes. Even Kennedy should be insulted by the suggestion. What worries me is that he might not be.