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Monday, July 06, 2015

Empathy, Sympathy, Compassion, and Sentimentality (and Obergefell)

At The Faculty Lounge a few days ago, Calvin Massey had this nice, short take on empathy, the Constitution, and Obergefell. The post responded to a recent op-ed by Kent Greenfield, which argues that "[t]he difference between Justice Anthony Kennedy’s majority opinion [in Obergefell] and the lead dissent of Chief Justice John Roberts is empathy, and lack thereof." Massey does not take issue with the premise that empathy had a role to play in Obergefell. But he suggests that "there was another path that would have bridged the passionate empathy of Justice Kennedy and the sober reading of constitutionally protected liberties of the Chief Justice": namely, to hold that full faith and credit demanded the recognition of out-of-state same-sex marriages, while leaving the states with some right to define marriage as they wish. He concludes: "Empathy itself cannot be the ratio decidendi of constitutional law, but neither must it be absent."

A lot of careless things are written and said about empathy and constitutional interpretation. Both Massey and Greenfield's pieces, although I disagree with aspects of each of them, are better and more interesting than that. Greenfield, for instance, favors the use of empathy as an important element in constitutional interpretation, at least in cases that allow for judgment calls. But he does not think it is sufficient as an interpretive guide. A balance is required. "Judging with feelings alone can be disastrous. But cold intellect can lead to error as well." 

In writing about these issues, it is important to keep some distinctions in mind. In particular, it is important to distinguish between sympathy, empathy, and compassion. I go into these distinctions below the fold, at the usual Horwitzian length. I sympathize with those whose understandable reaction is "tl; dr." They can skip to the last paragraph of the post, where I sum up my conclusions. I will go one better than that here and offer an even shorter summary: Most people who praise judicial empathy during a judicial nomination and confirmation process actually care about judicial sympathy or compassion. By contrast, nothing about judicial empathy requires a judge to favor the claims of the more sympathetic or disadvantaged party. Indeed, one of the most valuable aspects of judicial empathy is that it helps the judge in speaking to the loser of the case.    

Empathy, as one dictionary has it, is "the ability to understand and share the feelings of another." It is similar to but not the same as sympathy: "feelings of pity and sorrow for someone else's misfortune." It is possible, even common, to be sympathetic but lack empathy: to care deeply about the suffering of others without actually understanding those others or even making much effort to do so, to be sincerely charitable but also ignorant or condescending.

To pick up on another issue that has been discussed a great deal at The Faculty Lounge recently, empathy is arguably a vital ingredient of good ethnography, and of many other academic disciplines in the humanities and social sciences as well, often including law. Understanding the experiences, perceptions, and perspectives of one's subject can be an important part of one's work. Sympathy, on the other hand, may be largely irrelevant to academic work. I care what an ethnographer can tell me about the perceptions and feelings of his or her subjects. But I should not have to care how the ethnographer him- or herself feels about those subjects. I think it is fair to say that quite a few many contemporary academics believe otherwise: they think that sympathy for the disadvantaged subject is as much an academic duty as understanding. One may perhaps note here that one element of sympathy without empathy--and of valuing one's own sympathy, and especially one's display of sympathy--is the note of self-concern that can creep into such writings.     

To this distinction we must add another: the distinction between empathy and compassion, or (more finely) between sympathy and compassion. Although some definitions treat sympathy and compassion as synonymous, popular understanding of the word seems to distinguish compassion from sympathy by treating compassion as involving not just fellow-feeling for another's suffering, which is sympathy, but the desire and, perhaps, the concrete act of doing something to alleviate that suffering. Some of these terms, it seems to me with respect, are used too interchangeably in Greenfield's op-ed, or in the sources he cites, such as Justice Blackmun's notorious "Poor Joshua!" dissent in DeShaney, in which Blackmun wrote that given arguments on both sides of the case, "I would adopt a ‘sympathetic’ reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging." 

It is possible to argue that empathy is, if not always, then certainly often a required element of judging. It is often valuable, and sometimes legally necessary, to understand a case from the perspective of one or both parties: to understand, for instance, how and why someone experiences some legal stricture as a burden or an injury, or something of the subjective intent of the claimant. It may be particularly important in cases where the judge is either ignorant of relevant facts about that person's experiences, beliefs, and feelings, or even predisposed to view the claimants perspective as alien, irrational, or distasteful. Why do Sikh claimants care so much about wearing a ceremonial knife? Faced with a 24-hour waiting period, why doesn't a pregnant woman seeking an abortion simply rent a lovely hotel suite for a night and come back refreshed in the morning? Decisions in these cases are aided by making an effort to understand the perspective, factual and subjective, of the claimant. 

Greenfield, who argues for the value of empathy, implies that it is unnecessary in "cases where the solution can be discerned by sheer force of intellect." If the legal rule says the speed limit is 55 miles per hour, as opposed to saying that one must drive reasonably under the circumstances, no empathy is required to apply it. Even cases involving "objective" standards, such as driving reasonably, may require only technical skill at understanding the relevant elements that go to make up reasonableness, without anything more. I think empathy can be of value in even those cases, in various ways. Not always, surely. But it may guide one's sense, if not of how the legal question should be decided, then of how the decision's consequences will play out for the party, or of how the party is likely to react and respond to the decision. It is possible, although I can imagine arguments to the contrary, that empathy may also be useful in forming or modifying objective legal standards such as reasonableness. 

Legal decisions can be aided by empathy. But empathy does not decide those cases. Most important, it does not decide them in favor of the subject of the empathetic exercise, nor in favor--to underline the key distinction made above--of the more sympathetic party. One may empathetically understand, and from that perspective treat as significant, the experience of a significant burden on the religious exercise of an individual who owns a large crafts-store business and who faces a legal mandate with respect to the treatments covered by his company's health insurance policy. And yet, whether or not one also feels empathy or sympathy toward employees who are themselves affected or burdened by the exemption sought by the business owner, one may still conclude that the claim for an exemption loses. The employer may lose not because the employees seem more sympathetic, or because one also understands their burden, but for various legal or policy reasons that are take precedence over the judge's empathy: for example, because the statutory term "person" cannot be understood to reach corporate entities or for-profit businesses, or because no exemptions should be available from generally applicable policies, or because the government has met the burden of showing the compelling nature of its own interest and that it is as narrowly tailored as possible, or because economic efficiency interests require a ruling for the government, or because, regardless of the judge's empathetic exercise, he or she concludes that the court lacks jurisdiction in the case. One's exercise of empathy may even lead one to conclude that, whether under the law or as a general matter of justice, one now understands that the claimant's conduct was highly unsympathetic, and/or worthy of condemnation and punishment. For purposes of legal interpretation, to understand all is not to forgive all.

It is also important to note here the regularity with which empathy and sympathy are confused or poorly thought out in talking about things like judges' roles or what qualities a judicial nominee should possess. If I am right that empathy can help a judge better understand the claims, cases, and parties before the bench, then I think it is a useful quality even for those judges who believe that the law itself ultimately requires calling "balls and strikes"; it may still help one understand the shape and size of the strike zone, so to speak. When many people use the word "empathy" in talking about judicial nominees, however, they really mean that they want those judges to be sympathetic or compassionate. They may differ among themselves concerning the scope of the judge's discretion to act compassionately, in the number of cases that must perforce be decided in a formalist or legalistic fashion. To some degree, however, they believe that where the judge has discretion, it should be used in favor of the more sympathetic party--that the judge has a duty in such cases to act compassionately toward that party, to comfort the afflicted (and, perhaps, to afflict the comfortable).

Many people were clearly thinking in these terms about the nomination of Sonia Sotomayor. And certainly this is the import of the statement from Justice Blackmun in his DeShaney dissent that I quoted above. To act as Blackmun, and many other public commentators, demand frankly does not require much empathy at all. Neither pity nor compassion necessarily entail all that much understanding of the object of the sympathy. Many a Jellyby has felt or acted sympathetically toward some group readily identified by convention or common sentiment as a suffering or subaltern group, while displaying little interest in experiencing that group's life and feelings as his or her own. It takes sympathy or sentiment, not deep understanding, to write "Poor Joshua!" And if I am right that empathy involves understanding some claimant but does not compel a ruling in favor of that claimant, then I will go out on a limb--a small one, I think--and suggest that if faced with a choice between a generally empathetic judicial nominee and a generally sympathetic or compassionate nominee, many people would prefer the latter to the former. Nor am I going out on much of a limb, I think, if I add that they would feel this way even if that nominee was not especially empathetic, but was instead condescending, or politically programmatic, or moved by noblesse oblige, or simply adequately informed as to mainstream modern elite views about which groups should be understood as deserving of sympathy. On this view, understanding the unfortunate is nice, but pitying and helping them is far more important. 

In my view, there are still good reasons to favor empathy in judging even if that judge feels compelled to rule against the sympathetic party. It can matter, I think, how one tells someone that he or she has lost the case. Ideally, we do not want losers to reject the justice system altogether, nor--this may be a mildly controversial point, but I think even those who would controvert it would at least agree that it is sometimes true--do we want groups that are on the cusp between liberal and illiberal to become fully illiberal, rejecting entirely the notion of participating within liberal society, or to encourage illiberal groups to become still more radicalized. This is one argument in favor of religious accommodations (how far in favor is another matter), and against a pro-"martyrdom" approach to Free Exercise law, that I think has received too little attention. (I do make the point briefly in this book.) At a more mundane level, even if we are just interested in a marginally greater degree of social peace, or in having the loser comply with the judgment and thus ensuring final settlement of the controversy, we may want to speak to the loser in a way that acknowledges their perspective rather than treating it ignorantly or with contemptuous indifference.

While it is difficult to write a seriously empathetic opinion, for or against the claimant, it is much easier to write a sympathetic--a merely pitying--opinion. For what it's worth, I agree with Greenfield that the section of Justice Kennedy's opinion in Obergefell treating the facts of these and any more cases is better than that: it exhibits at least some empathy, not just sympathy and/or compassion. And it is at least fair to say that Chief Justice Roberts's opinion exhibits less visible sympathy for the same-sex marriage claimants than it could or should have.

I would add to that, however, these qualifications:

1) I do not know how well or poorly Roberts actually understands the claimants' experiences and perspective, how empathetic he actually is or was toward those claimants. That he votes against recognizing a constitutional right here is not strong evidence that he lacks empathy toward the claimants. Empathy, I have suggested, entails understanding a person's claim, not ruling in favor of it. It is perfectly possible to show genuine empathy toward a claimant but still conclude that the Constitution contains no such right, or that one should avoid creating new substantive due process rights, or that democratic change is better than constitutional entrenchment, even with respect to claims whose compelling nature one fully understands.

2) It is arguable that, regardless of the legal conclusions drawn by Roberts and the other dissenters, a stronger empathetic sense toward the claimants could or should have led them to write their dissents differently, acknowledging the powerful nature and meaningful experiences behind their claims more strongly than they did and defending the value of their legal views notwithstanding the claimants' own experiences and perceptions.

3) Empathy need not be exercised only toward the "sympathetic" parties, as one judges that question. It is relevant for understanding more deeply the interests, experiences, and likely reactions of all the stakeholders in the case. I do not think this is especially true of Justice Kennedy, but it is certainly true that some public commentary displays little deep understanding of the experiences and perspectives of some opponents of a constitutional right to same-sex marriage. That one disagrees with them does not mean one cannot or should not attempt to genuinely understand them, as opposed to merely drawing swift and stereotyped conclusions about their thoughts and feelings. The result of an empathetic exercise may be that some of those opponents come off looking worse--more dishonest, or holding views that from the perspective of the empathetic person are more deserving of condemnation than they initially thought. Others among those opposing the claimants' side might come out looking better; at least, one might better see the complexities, varieties, and ambiguities within that opposition. All this might better help one speak to that side as well, reducing, however marginally, the risk of turning those groups still more illiberal or encouraging them to resile from the social contract altogether. Or it might help the judge to understand better all the issues and competing stakes and values involved in the next set of cases that come up, such as those involving religious accommodation, or polygamy, or something else. In a divided, pluralistic, and complex society composed of groups and individuals with a huge number of different views, emotions, arguments, and reactions, most of whom at least think they are acting in good faith and for the right, empathy is rarely wasted.   

Finally, I would add, somewhat more speculatively, my sense that these issues--the nature of and differences between empathy, sympathy and compassion--can offer some link between the substance and the style of a judicial opinion. I suggested above that it is possible to be sympathetic or compassionate without being truly empathetic. I have also written elsewhere bemoaning the poor writing of Justice Kennedy's majority opinion. (Many people have voiced that opinion, including a number of staunch supporters of same-sex marriage. I suspect many more legal academic supporters of same-sex marriage feel the same, but feel constrained not to say so publicly. They do not want to look unsympathetic.) I also suggested that Kennedy's opinion displays at least some empathy, not just sympathy or compassion.

But that is a question of degree. And it may be that the evident weaknesses in Kennedy's writing in Obergefell are related to a tendency on his part to possess or display more sympathy than empathy. Writing that is sympathetic or compassionate, but lacking in true empathy--in a serious effort to experience the claimant's experiences and perceptions as one's own--may be more likely to be somewhat superficial, to lack real depth. It may display a higher degree of sentimentality. That may be especially true of those who care especially about the conspicuous display of sympathy--a common trait in our highly sentimentalist society, one in which phrases like "I think..." are often tellingly reworded as "I feel...," in which feelings are often treated as creating moral claims on others and are frequently prioritized or valorized more highly than reasoned judgments. Although I don't doubt the sincerity of Kennedy's sympathy on these issues, I think it is fair to say that his writing also gives the sense of his strong desire to be seen as sympathetic. 

This is not all bad. Empathy, especially universal empathy, can be paralyzing. (To quote a song by James McMurtry: "He saw both sides of everything/And found he could not move.") Sympathy and compassion may tend to produce more concrete action than empathy alone; certainly compassion ought to, although most of us know people who are highly, publicly sympathetic but do little or nothing about it. Academics--traditional academics, anyway--may be more concerned with contemplation or understanding than with action, and more disdainful of shallow sympathy or sentimentality. Claimants themselves can hardly be blamed for caring more about winning than about being "understood." 

Still, there is some value in getting our terms right and thinking through these issues with some care, especially as long as they figure in judicial nomination talk. The most important conclusions, I think, are these: 1) Many advocates of judicial empathy are actually more interested in judicial sympathy and compassion, provided that the nominee is sympathetic toward the right people. 2) Empathy, properly understood, is a valuable quality in judicial nominees. Properly understood, however, empathy does not require that the judge rule in favor of the more "sympathetic" claimants. 3) Empathy may be especially valuable not just in helping judges to understand the claims before them, but in helping them to speak to the parties. An empathetic opinion may be especially valuable in speaking to the losers in the case. It can help increase the degree of compliance with the judgment, give judges a better sense of the stakes in this and future cases, and encourage losing groups, especially illiberal ones, to stay within civil society rather than becoming more illiberal or radicalized. 4) Judicial empathy may be especially important in cases involving religion, or other groups whose beliefs, reasons, motives, and strong feelings are not "publicly accessible." 5) Judicial sympathy, without real empathy, may result in more sentimentalist judicial writing. 6) Nevertheless, for those who understandably care more about getting the "right" judgment than about getting the best or deepest judicial opinion, there are reasons to value sympathy more highly than empathy. But they should not be surprised if, along with the outcomes they want, they also see an uptick in shallow or preening opinions. 

Posted by Paul Horwitz on July 6, 2015 at 09:56 AM in Paul Horwitz | Permalink

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