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Friday, May 29, 2009

Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change

There’ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does – and should – play in judicial reasoning. There’s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I’m sure many others I haven’t read). But as far as I can tell no one’s yet mentioned the First Amendment decisions in the “Bong Hits 4 Jesus” case (aka Morse v. Frederick) and in Legal Services Corporation v. Velazquez, which I think help shed some interesting light on the question (even if they’re not the only potential sources of such light).

As Orin Kerr rightly points out, there’s an important distinction to be drawn between empathy which is “doctrinally-relevant” and that which is “doctrinally-irrelevant.” He presents a clear-cut example of the former: “if a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is ‘very painful’” then judges will find it hard to apply that rule without drawing upon their capacity for empathy. Even if they’ve never been on death row awaiting execution – and I’m guessing the closest many Supreme Court Justices have come to that situation is the time when they’re waiting for a skeptical Senate to decide whether to confirm their nomination – they have to find some way to imagine what would be “very painful” for someone in the prisoner’s position. One can also imagine situations where empathy would be completely unnecessary, such as determining whether a particular person is old enough to be a Senator, Representative, or President.

I’d add that for empathy to be a legitimate part of judicial-reasoning, its doctrinal relevance should not only be present in the case, but als the source of the judge’s motivation for drawing upon empathy. Imagine, for example, a situation where a judge shifts his or her favored methods of judicial interpretation in order to get the best result for a favored party or interest group. In other words, an empathic judge might be a textualist when it favors the little guy, and then – to help out the next suffering petitioner – switch to focusing on statutory purpose or legislative history. Empathy might plausibly be said to be doctrinally-relevant in both the first and second cases, but I think something is likely going wrong if a judge is changing judicial philosophies or switching interpretative frameworks simply to get a result that is more emotionally-satisfying for him because it helps a disadvantaged litigant. The same would be true of a a judge who switches interpretative methods to help a certain industry, or big business more generally, because he or she has been a businessperson before (or had lots of clients who were) and finds it easier to identify with their concerns.

I suspect that there are subtle variants of this framework shifting that might sometimes take work and self-reflection to avoid. Imagine, for example, that a Supreme Court Justice is applying the factors set out in Planned Parenthood v. Casey to determine whether they should vote to overrule an existing Supreme Court precedent. It’s quite possible (I’d guess) that varying degrees of empathy with different parties might affect judges’ determinations about when a certain “reliance” interest is or isn’t strong enough to weigh in favor of retaining that precedent, or whether a certain precedent is or isn’t “workable” in the real world – and that judges would thus have to ask tough questions of themselves (and each other) about the legitimacy for deeming a certain reliance or workability concern stronger or weaker than another.

What the Bong Hits 4 Jesus and Velazquez cases highlight, I think, is that it will often be very hard – particularly in Supreme Court cases – to find empathy “doctrinally-irrelevant” and that, for this reason, empathy will often play some role, and present some danger in Supreme Court decision-making. Take the Bong Hits 4 Jesus case, Morse v. Frederick. . As most readers of this blog probably know already, that was the case where the Supreme Court held that a school principle did not violate the First Amendment in punishing a student for displaying a huge “Bong Hits 4 Jesus” banner at a gathering near the school to view and cheer a portion of the Olympic Torch Relay in 2002 Unlike the hypo Orin Kerr offers, where a statutory rule practically requires judges to imagine the perspective of a prisoner in order to decide if an execution method is “very painful,” none of language in the court-crafted rules at issue in Morse clearly required the Court to place themselves in the shoes of school officials or students. The Tinker case required them to judge whether a certain student’s speech would cause a “substantial disruption of or material interference with school activities,” Hazelwood to decide if a certain speech was an example of a “school-sponsored publication, theatrical production, and other expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” and if so, whether the school’s restriction was “reasonably related to legitimate pedagogical concerns,” and Fraser to ask whether the school’s speech restriction was part of its exercise of its “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (or perhaps some other school function that is equally appropriate?).

One might argue that judges could have made each of these inquiries entirely from where they sit (as judges) instead of by imaginatively placing themselves in the position of a school official or student. But that’s not what they did. Rather, there were plenty of attempts on the part of the Justices to imagine how it would be if they were principals or teachers confronting different kinds of student speech under different possible rules. Justice Roberts observed in the plurality opinion that “principals have a difficult job,” and that the principal in that case “had to decide to act – or not act – on the spot.” In the oral argument, Justice Breyer expressed similar concerns about what it was reasonable to demand of a school principal forced to make quick, on-the-spot decisions about what speech about drugs constitute a threat, and what didn’t: “He doesn’t know the law, the principal. His job is to run the school. And so I guess what I’m worried about is . . . we’ll suddenly see people testing limits all over the place in high schools . . . I want some help here and I’m worried about the principal.” Justice Kennedy noted that a decision in favor of the students’ damages suit would hurt “this principal who has devoted her life to the school.” And Justice Roberts added that such a decision in favor of damages might leave “principals and teachers around the country hav[ing] to fear that they’re going to have to pay out of their own personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”

Part of this questioning was made in the context of the argument over whether the principal had qualified immunity, when the Justices were asking the party’s lawyers about whether the relevant law could have been clear enough to someone in the prinicipal’s situation to justify removing such immunity. But empathy was clearly playing a more larger role here: It was contributing to a decision not merely about whether the principal’s judgment was reasonable at the time, but whether an equivalent decision made by another principal (taken after the Morse) decision should or shouldn’t be considered reasonable under the First Amendment going forward. And empathy was playing such a role, I think, because even though there’s no clear verbal command in the First Amendment’s language requiring the Justice to determine someone else’s feelings in a certain circumstance (as a hypothetical statute does when it requires judges to determine if a certain experience is “very painful”) , it’s very difficult for them to understand how a First Amendment regime will work in a school, and the day-to-day consequences it will have, except by imagining how it will look and feel from the vantage point of principals, teachers, students, and their parents.

All of this is consistent with Orin Kerr’s statement that empathy is often indispensable when judges “to try to assess the real-world impact of a particular practice on a person or group of people.” But I also think that, although I haven’t done any kind of survey or case count, that it’s likely to be true of a large percentage of the Supreme Court’s high-profile cases. Justices (and judges elsewhere, for that matter) will often have to get a sense of how the world looks from some party’s perspective in Fourth Amendment search cases, for example, when deciding whether someone had a reasonable expectation of privacy in a certain environment, or in deciding just how significant an intrusion into privacy takes place in a particular warrantless search regime (like a random school or employment drug testing regime). They may likewise have to do so when balancing individual and government interests,, and assessing the risk of existing procedures, and value of additional procedures, in applying the Mathews v. Eldridge test to determine if a person has received the process that is due to her.

Morse v. Frederick also highlights something else about empathy. While having a diversity of backgrounds and life experiences on a court may well make a positive difference in this regard, there’s no way such diversity can possibly provide for all the perspective-taking that happens (and is arguably indispensable) in judicial decision-making. I don’t believe any of the Justices were high school principals before they had their current job. None of them, as noted earlier, were sitting on death row awaiting execution. And none of them, of course, are non-lawyers. So all of them might have to go far beyond their own experience to show doctrinally-relevant empathy no matter how diverse the court is.

And no matter how much capacity for empathy judges bring to the Court, it will probably take a good deal of self-questioning on their part to avoid the dangers of using it selectively and unfairly. As Susan Bandes points out at Balkinization, “despite our best intentions, [empathy] 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.” Justice Scalia, I think, suspected that precisely this kind of selective empathy was at play in the Court’s decision in Legal Services Corporation v. Velazquez. That case held that First Amendment prohibited Congress from telling Legal Service Corporation what kind of legal arguments lawyers could make with legislative funding for welfare-related legal work. (Congress had told LSC the funds could not be given to any organization challenging existing welfare laws). But it came only a few years after the Court’s decision in Rust v. Sullivan, which permitted Congress and government administrators to impose very similar speech limits on doctors receiving certain federal funds for planning services – limits that barred them from “counseling, referral, and the provision of information regarding abortion as a method of family planning.” Scalia protested that Velazquez was in fact indistinguishable from Rust and guessed that the Court had reached a different result only because the case involved the “work of lawyers” rather than that of doctors and the Court was “display[ing] an improper special solicitude for our own profession.” I’m not sure that’s the right explanation for why Velazquez came out the way it did. But it probably is true that, after decades in the legal profession, it will sometimes take some efforts on the part of judges not to display “an improper special solicitude for [their] own profession.” Some, like Erwin Chemerinsky, have also worried that there are other systematic biases in the way empathy works on the Court. He writes in his LA Times debate with Ilya Somin that “today’s Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants.”

One way of addressing this problem, perhaps, is the one Ilya Somin proposes: that judges determine mental states rather than identify with those mental states. That kind of move sometimes makes a good deal of sense, but it won’t always suffice for the judge’s task. For example, I think it would have been hard for judges trying to get a sense of the challenge facing a school principal to understand that challenge by relying on a purely external indicia of the principal’s feeling state. They needed, and sought to obtain, an internal understanding of the principal’s experience: a sense of how the world looked (and would look) from a principal’s own vantage point. This isn’t to say that their identification with the principal’s visions in Morse, for example, should have led them to ultimately come down on her side. Other legal considerations may trump whatever concerns they have about the difficulties that would face principals in a certain First Amendment regime, including perhaps concerns about what kind of an environment public schools will be for students if the Court adopts a First Amendment regime that is overly generous to certain teachers and principals. Moreover, the result of judges’ placing themselves in another party’s shoes may sometimes cut against that party’s legal position. If, for example, such an imaginative exercise tells them that a certain First Amendment regime **would not** be as burdensome as a party is claiming it is, that may hurt rather than help the case of the party in whose place they are imagining themselves.

Nor is it by itself a corrective to unfairly one-sided exercises empathy for a President to appoint Supreme Court Justices who are unfair and one-sided in a different direction: I doubt individuals will feel much better about a constitutional law decision they perceive as unfair just because there are dissenting justices who are partial towards them instead of towards the winner. The hope must instead be that having judges with very different perspectives and backgrounds will make it likely that all judges will hear questions and arguments they otherwise wouldn’t have heard, and that this will make judges better able to draw upon the right kind of empathy when they need it, and better able to detect and stop themselves from finding themselves emotionally-pulled toward one side of the dispute, when the situations demands more even-handed exercise of empathy (or putting it aside altogether in favor of other sources of legal decision-making).

Posted by Marc Blitz on May 29, 2009 at 03:55 PM in Judicial Process | Permalink


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I would suggest that a prime example of empathy making a difference is Justice Thomas' dissent in the 2003 case of Virginia v. Black (538 US 343)-- explaining how victims perceive the burning of a cross on their property.

Posted by: Howard Friedman | May 30, 2009 5:54:40 PM

Yes. Thanks for pointing that out. That's what I get for looking to my right and to my left, but not sufficiently attending to what's in my rear view mirror before posting.

I entirely agree with what I take to be the main point of Paul's post: that empathy is not incompatible with impartiality or good judicial reasoning. I think the strength of this argument is also becoming apparent to some of the President's critics (e.g. Michael Gerson's article today, "A Disturbing Judicial Philosophy" attacks "selective" empathy, not all reliance on it by judges).

Posted by: Marc Blitz | May 29, 2009 10:36:20 PM

Others have indeed written on this topic, and if I'm not mistaken, Prawfs' own Paul Horwitz was one of--if not the--first: http://prawfsblawg.blogs.com/prawfsblawg/2009/05/is-empathy-lawless.html

Posted by: Patrick S. O'Donnell | May 29, 2009 6:40:52 PM

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