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Why is Empathy Controversial? Or Liberal?

By Jack M. Balkin

Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.

So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily?for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.

We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren?t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.

The oral argument in Safford v. Redding, the school strip search case, is a nice illustration of how pervasive empathy is in judging, and of how selective empathy can affect legal reasoning. The justices spent substantial time examining the viewpoint of the school administrators faced with keeping students safe from dangerous drugs. They took the administrators' concerns very seriously, and viewed them in a favorable light. Here is Justice Souter, for example, imagining what would go through the head of the principal charged with keeping the students safe: ?My thought process is I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.?

The Court?s effort to understand the viewpoint of the plaintiff was far more cursory (and often downright strange). Several of the justices consulted their memory of their own experience in school locker rooms, and concluded that their experience was a good measure of how intrusive the strip search was -- no different from asking students to change clothes in a locker room. Justice Ginsburg informed her brethren that this was no locker room suit-up. The search involved a thirteen-year-old girl forced to strip to her underwear and shake out her bra and underpants in front of school officials who suspected her of concealing prescription ibuprofen. The point is not that Justice Ginsburg's account is entitled to deference. The point is that she played the important role of reminding the other judges that their own experiences in school were not universal?or entitled to automatic deference.

To resolve the Fourth Amendment issue, the Court must determine how intrusive the search was, how important the government interest was, and whether the government adopted a reasonable means of addressing its concern. To do that, it first has to understand what?s at stake for all the litigants. That?s where empathy plays a role. Empathy offers no guidance in weighing the competing values of security and privacy at stake in the fourth amendment analysis. But when selective judicial empathy is left unaddressed, legal analysis may turn on questionable and unexamined assumptions about human behavior.

Full post as published by Balkinization on May 25, 2009 (boomark / email).