Friday, June 19, 2015


Joseph Fishkin

At the time of Justice Sotomayor’s nomination, there was much controversy about President Obama’s assertion that “empathy” was an important quality to look for in a Supreme Court justice. Was that code for an activist judge who would find a way to rule for sympathetic defendants and other litigants with compelling stories that tug at the heartstrings, at the expense of the letter of the law?

As applied in particular to Justice Sotomayor, this charge was far from the mark. Compared to the average appellate judge (on the left or the right), Sotomayor is a relatively by-the-book type, as one might expect of someone who spent many years as a district court judge (and before that, a prosecutor). Yesterday she wrote a majority opinion in a death penalty case, Brumfield v. Cain, exemplifying this: in fairly brisk prose, she stuck very close to the specific facts in dispute and the rule the Court laid down in Adkins, to clarify exactly what process is due when somebody on death row attempts to claim that they cannot be executed due to mental incapacity. Writing for a 5-4 majority, she sides with the district court’s holding that Louisiana’s process was not adequate on the facts of this particular case; a hearing is required.*

Then there’s Justice Thomas. He writes a remarkable dissenting opinion, considerably longer and more impassioned than the majority, a substantial part of which is devoted to the tale of the victim, a photograph of whom is included as an appendix, and then the victim’s children, especially the eldest of those children, who became a prominent NFL player and has apparently devoted himself to laudable charitable works including a foundation that assists single mothers. It is not an exaggeration to describe this opinion as giving the victim’s children roughly equal billing to the actual defendant in the case, whose mental capacity—or rather, whose claims about procedural due process regarding the adjudication of mental capacity—is the sole issue before the Court. Here is how Justice Thomas himself frames his dissent:

This case is a study in contrasts. On the one hand, we have Kevan Brumfield, a man who murdered Louisiana police officer Betty Smothers and who has spent the last 20 years claiming that his actions were the product of circumstances beyond his control. On the other hand, we have Warrick Dunn, the eldest son of Corporal Smothers, who responded to circumstances beyond his control by caring for his family, building a professional football career, and turning his success on the field into charitable work off the field. 

That is just the initial plot summary; there is much, much more. Enough, apparently, to make Justice Thomas’s co-dissenters (Chief Justice Roberts, Justice Scalia and Justice Alito) a little uncomfortable, to the point they joined all of Thomas’ opinion but did not join that long section about Warrick Dunn and his family and football career and charitable works, because, as two of them wrote in a short separate squib of an opinion, although that story is “inspiring and will serve a very beneficial purpose if widely read,” they “do not want to suggest that it is essential to the legal analysis in this case.”*


No, I should hope not.

Justice Thomas’ opinion raises many profound questions and some not so profound. Let’s try a hypo. Suppose Brumfield had committed the same crime except that he murdered some other police officer who, unlike this officer, was a low-life, obnoxious, unappealing, despicable person, with a history of reprehensible infractions just shy of losing his or her badge and gun, with no children to leave bereaved (or alternatively, one child who was, from an early age, a despicable and unappealing person in his or her own right). Would this affect (1) the appropriateness of the death penalty for Brumfield, (2) the substantive question of Brumfield’s mental capacity, or (3) the procedural due process question actually before the Court, of whether Louisiana should, on the evidence before it, have held a hearing on the issue of mental capacity?

I imagine there are people out there who would argue that various aspects of the life story of the victim or even the victim’s family might be relevant to (1). This is the kind of reasoning proponents of Victim Impact Statements favor; it’s retributive justice at the penalty phase, with more retribution due if more compelling victims are victimized. Even among those who favor that (dubious) sort of claim, I would like to hear the straight-faced argument that Warrick Dunn’s football career is relevant here. Not easy!  In any event there is simply no plausible argument at all that such matters are relevant in any way to (2), let alone (3). To the extent that this part of Justice Thomas’ opinion plays any role in his actual judgment in this case—let alone an “essential” role—it seems we have a perfect, highly distilled example of judicial empathy playing the role conservative Senators feared after Obama spoke of empathy. Thomas’ empathy for the victim’s children here seems so powerful that it exerts a gravitational pull, tugging on the trajectory of his analysis of the facts and law of the set of issues actually before him.

Or does it?

When President Obama came under attack for talking about “empathy” in relation to judging, many of us had a suspicion that the problem was not empathy itself, but rather, empathy for whom? The stereotype is that liberals have too much empathy for defendants in criminal cases and victims in tort cases. The flip side of the stereotype is that conservatives have an excess of empathy for defendants in tort cases and victims in criminal cases. Whether any of this empathy colors one’s judgments depends on what color the judgments should have been to begin with. That is to say: empathy in judging is actually part of judging, because it is part of making evaluative judgments about different facts, people, and circumstances, with many subtle gradations of responsibility, egregiousness, reasonableness, and so on. The idea that one could judge without such evaluative judgments about the stories and circumstances of victims and defendants is a particular fantasy of judging—the judge as umpire, calling balls and strikes—that is good for getting Chief Justice Roberts through his confirmation hearings but not much else.

Still, it’s important for judges to have a capacious enough sense of empathy that they can step into the shoes of all the parties affected by their decisions. A judge who can only really understand the story of parties with whom he has political or ideological affinities, or with whom he shares certain demographic or other characteristics like class and education, is simply not going to be very good at the job of judging.  Relatedly, it is important for judges to be clear about when empathy is relevant and when it is not.  Empathy for a victim may be helpful, for instance, in fairly assessing damages.  It is not relevant to a question of fact about whether the defendant did the deed.  (Nor to the fact question of a defendant's mental capacity.)

In this case, then, Justice Thomas could readily be accused of allowing his judgment to be too much inflected by empathy for the crime victim and her children. The narrowness of the specific question before the Court did not even remotely begin to invite the kind of extemporizing on the topic of Warrick Dunn that now fills pages of the U.S. Reports. But I’m not sure that accusation gets it quite right.

As the sentence quoted above from co-dissenters Alito and Roberts suggests, Thomas may feel that his unusual dissent serves a special, essentially pedagogical function. It is aimed not at the lower courts but at the general public. The idea is that the public should read it and learn Justice Thomas’ larger point: that we should not attribute our actions to circumstances beyond our control, but rather, should get on with it, doing the best we can even if we have been dealt difficult cards, and it is within our power to make a success of our lives.

The point, in other words, is ideological and pedagogical. This is not empathy clouding adherence to the law, but something quite different: it is teaching or speechwriting crowding out the enterprise of adjudicating legal claims.

In another case that also came down yesterday, Justice Thomas wrote another remarkable opinion, this one very short. In Davis v. Ayala, a 5-4 majority (including both Thomas and Kennedy), upheld the defendant’s conviction against a Batson challenge. Justice Kennedy joined the majority opinion in full but wrote a separate concurrence to decry the fact that the defendant, Ayala, has spent most of the past 25 years in solitary confinement. Justice Thomas responded with his own separate concurrence, this one very brief, stating only that “the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

Is this empathy for those three crime victims? Or is it essentially ideological snark—a debater’s point, perhaps for the public’s edification, framed as legal judgment? Either way, Justice Thomas simply could not let stand Justice Kennedy’s suggestion that there is something wrong with putting a man in solitary confinement for most of the past quarter century.  At some point, it is actually hard to tell where empathy for victims ends and hard-edged ideology begins.

If this is indeed a form of empathy, it is empathy against empathy: it is empathy being pressed into service to help us harden our hearts, steeling us to suspend the empathy we might otherwise extend to the person—unsympathetic in the extreme, but nonetheless a human being—whose case is actually before the Court. 

*Corrected these sentences in response to an email from a sharp-eyed reader.  Slightly confusingly, there were actually three Justices who joined Thomas' dissenting opinion and did not join the part about Warrick Dunn and his career and good works (Scalia, Alito, and Roberts).  However, only Alito and Roberts signed the short separate squib explaining why they did this, which was written by Alito.

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