Barack Obama has stated that one of the key values he is looking for in a Supreme Court justice is empathy. This has left outlets like the New York Times scrambling: after all, we know they deliberate the meaning of every word. So, now they are Scouring Obama's Past for clues as to what he could possibly mean.
However, they are looking in the wrong place - in politically motivated Senate votes instead of the pages of the Supreme Court Reporters that tell story after story of justices with empathy. Other diarists have already begun to mine this vein. I want to show the importance of judicial empathy, starting with The Civil Rights Cases.
In the latter days of the Reconstruction Era, the Supreme Court took up a challenge to congressional legislation which forbid a wide variety of discriminatory practices. The Supreme Court overwhelmingly ruled that Congress did not have the power to make such laws under the 14th amendment. The lone dissent was made by Justice Harlan, and his words are a shining example of judicial empathy.
My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens.
Justice Harlan here saw what the rest of the Supreme Court refused to recognize: that there was no justice and equality in society, and to pretend otherwise was a sham. Justice Harlan would show again his quality of empathy when he was the lone dissenter in another important case in constitutional history, Plessy v. Ferguson.
The Lily Ledbetter case provides a more modern example. The majority said that the statue of limitations on pay discrimination should run from the moment the discriminatory decision was made, going against precedent which could have instead said that each paycheck was a recurrence of the initial discriminatory decision. Justice Ginsburg, in an example of judicial empathy, wrote a scathing dissent, noting the real world difficulty in learning of discriminatory pay inequality. Luckily, Congress was able to pass the Lilly Ledbetter Act, but the legislature may not always be counted on to fix what the Supreme Court gets wrong.
One last example, from the current term - the Supreme Court's oral arguments regarding the case of Savana Redding. This young girl was called to the principal's office on suspicion of having an ibuprofen, and forced to be strip searched while the principal watched. The strip search culminated in the principal ordering her to shake out her underwear and pull out her bra. Justice Breyer thought this was just like middle school gym class back in the old days, when people stuck stuff in his underwear. In a moment of judicial empathy(showing the necessity of diversity on the court), Justice Ginsberg suggested that this was nothing at all like the typical locker room experience of a middle or high school aged girl.
As Justice Scalia has expressed, cases reach the Supreme Court because they are difficult cases. Cases are often decided 5-4 because the law is unclear, and both sides have support. Supreme Court justices do not ever have the privilege of easy answers. They must weigh arguments of law, policy, economics, and much more besides. Judicial empathy does not mean that a justice will pick for the less powerful, or make a decision that is seen as more "liberal"(an almost meaningless phrase in Supreme Court jurisprudence). It does mean that a judge will be able to see reality on its face, and make judgments based on how things are, not how a judge wishes things to be or how they remember they were. I hope Barack Obama does find a justice with empathy - the Supreme Court could sure use it.