Empathy and the Supreme Court

In case you haven't noticed it yet, we've just posted a Web-only article by Pepperdine law professor Douglas W. Kmiec on the search for a new Supreme Court Justice. In "The Case for Empathy," Kmiec addresses the conservative idealogues who see "empathy" as merely a code word for abortion rights or other liberal dogmas:

Empathy yields one additional lesson: law is no substitute for love. Yes, it is wrong when the Court usurps legislative function or when it disregards the structure of the Constitution that reserves appropriate questions to the states. Yet it is empathy that gives insight into where exactly no government—federal or state—should be involved. In times past, it may have been possible to count upon church or competing private institutions to maintain this boundary between what is public and what is private, but these independent sources of moral formation have also come to overly rely on the crutch of law’s coercion.In the end, however, coerced morality is without meaning or lasting effect.

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Read the whole article here.

Tim Reidy

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9 years ago
It is not empathy I want but a sense of justice, with the willingness and the ability to weigh the equal protection rights of individuals (i.e., the right to be treated equally by the state) with the right of majorities to rule.  Most times when you look at examples of "empathy" or "judicial activism" what you really have is judges being judges.  It is hard to define a standard to judge whether the majority is picking on the rights of the minority - but like other obscenity - you know it when you see it. It really is not rocket science.  You have two lawyers and several amici making a case and the one that makes it better wins.  That is the rub, actually, because an unskilled advocate - or one with hidden objectives - can really mess up the result for whole classes of individuals.
9 years ago
Can someone define "empathy"? Or is it one of those things that one just knows when seen, like pornograph?
9 years ago
As long as a SCOTUS justice has empathy for the unborn, he or she is alright by me.

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