Is There a Place for Empathy on the Supreme Court?

Republicans had a field day when the president said that "empathy" was an important attribute for a Supreme Court nominee. But as recent cases argued before the court prove, lives are at stake. Empathy is essential.

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Much was made of President Obama's identification of "empathy" as a key attribute of a Supreme Court nominee. Republican derision of empathy as a desirable quality in a Supreme Court justice was, of course, a mere tempest in a teapot. Republican presidents have also touted the importance of empathy, including George H.W. Bush, who introduced his 1991 Supreme Court nominee Clarence Thomas as a man of "great empathy."

It was conservative stalwart Sen. Strom Thurmond (R-S.C.) who, as chair of the Senate Judiciary Committee, introduced Sandra Day O'Connor at her confirmation hearings in 1981, and explained that in addition to seeking a justice of integrity, courage and legal acumen, "we seek a person of compassion -- compassion which tempers with mercy the judgment of the criminal, yet recognizes the sorrow and suffering of the victim."

Thus, the only real controversy with regard to judicial empathy is an honest recognition that different circumstances provoke different judges to respond empathetically. Case in point was the oral argument several weeks ago in Schwarzenegger v. Plata, a federal class-action suit challenging health care conditions in the California penal system. A three-judge federal court found that massive overcrowding in the state's prisons contributed to untreated mental illness, suicides and other preventable deaths of inmates. The overcrowding, the judges ruled, violated the Eighth Amendment rights of prisoners to be free from cruel and unusual punishment.

For more than 20 years, despite lengthy litigation and court agreements, the state of California had failed to correct those conditions. In 2009, the three-judge panel issued a prison-population reduction order. (The Supreme Court will decide whether the Prison Litigation Reform Act authorized the court to issue such an order.)

It's not often that Supreme Court justices exhibit empathy for prisoners. But when the California attorney insisted that the state needed more time to comply with the court's order, Justice Sotomayor, a former career prosecutor and federal trial judge, responded:

So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you're going to deliver care that is going to be adequate?

Justice Breyer was moved by photos he saw in the record of the case. He noted:

It's a big record. What I did was I -- it refers to on-line evidence, and I went and looked at the pictures, and the pictures are pretty horrendous to me. And I would say Page 10 of the religious group's brief, for example, shows you one of them. And what they're saying is, it's -- it's obvious. Just look at it. You cannot have mental health facilities that will stop people from killing themselves ,and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this. And then you look at them. Now, you've looked at them. I've looked at them. And what is the answer to that?

This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see: are there more crimes or are there not.

It's important to see the justices respond forcefully to the human element in the cases they hear. Too often, the justices on the court seem devoid of empathy -- ignoring how the legal issues in the cases they hear will bear on the lives of the human beings behind the names of the cases. Such was the case earlier this year in Connick v. Thompson. In that case, oral arguments focused on whether a prosecutor's office can be held liable for failing to properly train prosecutors on the obligation to disclose evidence likely to prove the innocence of a criminal defendant.