Empathy on the Supreme Court
Even before President Obama appointed Judge Sonia Sotomayor to replace Justice Souter on the United States Supreme Court, politicians and commentators were urging Obama to pick someone with empathy. He agreed that this should be a key criterion, saying:
"I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives. I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
In order to gain more than a superficial understanding of what this rhetoric means and why it is dangerous to a free society, we will find it necessary to take "the long way around" and clarify exactly what is entailed by a civil society, a constitutional government, and the rule of law.
A Civil Society as Necessary for Human Happiness
Human beings by their very nature, require a civil society as a necessary precondition to flourish and be happy. A civil society is a society wherein all aggression of any kind is not tolerated or allowed to persist in human interactions. Aggression in this context, refers to the initiation of the use of force or violence.
So I am asserting here that the necessary precondition for human flourishing is the absence of aggression in human relationships. This is what it means to be free, and this is the kind of freedom America's Founding Fathers spoke of- freedom from aggressors who use violent force to interfere in our lives, violate our liberties, or expropriate our property.
A free human being can make voluntary choices for his or herself, and interacts with other human beings only on a voluntary basis of mutual consent. He or she is free to choose the kind of life to live, the values to hold, the goals to pursue, and the means to attain them (so long as those means are, of course, non-aggressive).
He or she is free and responsible to act according to an individual view of reality, and to suffer the consequences of that view if it is imperfect- without aggressively forcing others to share in those consequences. In such a society: the final argument is the truth and the highest judge is reality, as opposed to an uncivil society in which the final argument is force and the highest judge is the capricious whim of whomever wields that force.
Constitutional Government as Necessary for Civil Society
America's Founding Fathers understood that the chief danger to a civil society is its own guardian and protector- the government. A government maintains life, liberty, and property by acting as the trustee of each individual's right to defend himself against aggressors.
Vesting that right in a single executive is necessary for a civil society because that single government has three advantages that do not exist in what John Locke called the State of Nature- that is, the state wherein every individual is alone in defending his rights:
1) Wielding the combined force and resources of its individual constituents, the government has more power to effectively repel aggressors and maintain civil order. An individual alone may be unable to defend himself if he is outnumbered and outmatched.
2) The government can act more justly, according to a set of agreed upon standards for maintaining civil order. Any number of individuals acting alone, can misinterpret their right of self defense, and falsely derive unjust powers therefrom- a perfect example of this being a lynch mob that delivers "justice" to the accused in a fit of emotion, without due process.
3) The government can act more consistently, according to the specific prescriptions of its Constitution, duly enacted laws, and corpus of legal jurisprudence- this way every citizen can have a reasonable expectation of exactly how the government will affect his life, protect him from aggression, or deal with him if he aggresses.
Yet as mentioned above, the greatest threat to a civil society comes from the government itself, because that government holds a legal monopoly on the use of force and is therefore, prone to wield that force unlawfully and aggressively. This is why America's Founding Fathers insisted on a Constitutional Republic with an explicit Bill of Rights.
In their framework for understanding civil society, an individual has the freedom to do whatever he chooses except for the specific restrictions that bar him from aggressing against others. A government by contrast, is not allowed to do anything except for the specific powers enumerated by its constitution for the purpose of defending its constituents from aggression.
To be clear: An individual is free to do anything, with the exception of aggression, but a government is barred from doing anything, with the exception of preventing and punishing aggression.
Rule of Law as Necessary for Constitutional Government
The law is that which formally embodies and establishes the principles explicated above. Without it, a just civil order cannot exist. The law provides a framework for the government's operations, enumerates its powers, and sets its boundaries. The law codifies the principle that each human being's life is his or her own, and that he or she is not subject to the whim of those with superior numbers or strength.
Without the rule of law, a government can wield its power capriciously and to the detriment of liberty rather than for its protection. Without the rule of law, a government's actions may not be just or consistent. Without the rule of law, there is no civil society because the apparatus of government can be abused to favor some at the expense of the life, liberty, and property of others.
Imagine a society in which there is no law to which an appeal can be made, but instead your life, liberty, and property are at the mercy of a bureaucrat's whim. Imagine that this bureaucrat can dispose of them according to no criteria, but his subjective whims and emotions. Could anyone be truly free in such a society? Certainly not!
Now remember that imagining the existence of such a society is sadly unnecessary. To see a perfect specimen of this state of affairs, one need look no further than the real examples of most governments today, including, to an increasingly greater degree, that of the United States.
Empathy as Opposed to the Rule of Law
Now let us return to the question of empathy as a criterion for our nation's next Supreme Court Justice. Since Justice Souter's announcement that he would retire from the Supreme Court, Americans have been inundated with propaganda from the media and government calling for the nomination of someone with empathy.
Remember that President Obama said: "I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives. I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
What President Obama dismisses as "abstract legal theory" are this nation's laws and jurisprudence, without which there is no Constitutional government, there is no consistency in our government's actions, there is no standard framework or equal playing field on which free men and women can interact, and there is no longer an unbiased arbiter between equals.
Instead of all these things, which are necessary to protect our freedoms, the President would substitute empathy, which he defines as "understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes." In other words, "how a person feels, and how a judge feels about that person's feelings."
The Tyranny of Empathy
The President is unambiguously advocating the administration of "subjective justice." Can there be such a thing? Is it not a contradiction in terms? Justice is necessarily objective and categorical. Either an act is lawful or it is unlawful. This can be determined by examining the law, examining the act, and determining whether the act is in violation of the law.
But instead, the President would have this nation's highest judges examine a person's life and hopes and administer justice according to subjective criteria. There can be no end to such a tyranny as will result. You will have no recourse to the law to defend yourself because the court will not be interested in "abstract legal theory."
This will mean the end of the rule of law, without which there can be no constitutional government, without which there can be no civil society, without which human flourishing and happiness can be only the exception, not the rule, and will be always at war with the authorities that hold power. It will be a cruel and merciless tyranny to suffer.