Lies, Damned Lies, and Judicial Empathy

Abstract

President Obama's praise of empathy as a valuable judicial trait triggered a shamefully partisan misrepresentation of both the concept of empathy and the nature of our judicial system more generally. In this manufactured debate, the Right presented the judicial status quo as "objective" and "universal," contrasting it starkly with a caricature of judicial empathy as "biased" and "activist." To speak of the law or of the judiciary as impartial in a descriptive, as opposed to an aspirational, way is to lie. It is a very effective lie for the defenders of the status quo, because it makes the status quo seem both natural and right. And if the status quo is natural and right, any attempt to change it will be viewed as unnatural and wrong. If one instead views the law is a product of the biases, assumptions, and self-interest of those who write, enforce, and uphold it, then it seems both wise and necessary to encourage the diversification of our moral and legal imagination. Empathy is one way to engage in this reflective project. I define empathy as the exercise of our moral imagination against, or at least indifferent to, our own self-interest. Empathy is to be distinguished from sympathy, which is what we feel when others remind us of ourselves or our own experiences. Empathy forces us to imagine and to have concern for those who are radically different from and even threatening to us when the principles of justice demand it.

Keywords: empathy, judicial empathy, Supreme Court, provocation, Battered Women's Syndrome