Why Empathy Matters In The Judicial Process

When President Obama nominated Sonia Sotomayor to become an Associate Justice of the United States Supreme Court, he listed empathy among the criteria he wanted in a Supreme Court justice. That statement ignited a heated debate about the role of empathy in the judicial process. No doubt it also caused Sotomayor significant heartburn during her confirmation hearings, as she sought to persuade the Senate that she believed judges should decide cases based on the law and the facts, not on their “feelings” for a particular party to a lawsuit.

I’ve thought a lot about the empathy issue over the years, and especially during the past few weeks since the Supreme Court released its controversial 5-3 decision in Utah v. Streiff, a case involving the scope of the exclusionary rule under the Fourth Amendment. At the risk of oversimplification, the case holds that if a police officer detains a person unconstitutionally, but then learns that the person has an outstanding warrant and thereafter searches the person, any evidence that the search reveals is admissible in a criminal proceeding even though the initial detention was unconstitutional. According to the Court, the evidence is admissible because the existence of the warrant constituted an “attenuating” circumstance, i.e., an intervening factor that broke the link between the initial unconstitutional stop and the evidence obtained from the search.

Justice Sotomayor issued a stinging dissent, which she opened with these words:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.  Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

And closed with these words:

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.  It says  that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.”  They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Some critics of Justice Sotomayor’s dissent (neither Justices Ginsburg or Kagan, who also dissented, joined the part of the dissent cited above) argue that it is example of judicial empathy run amok. (For the record, the defendant in Utah v. Streiff was white.) Stripped of its strong rhetoric, however, Justice Sotomayor’s dissent essentially charges the five justices in the majority with failing to appreciate how the decision will affect people of color, who are “disproportionate victims of [police investigatory stops].”

The question for me is whether understanding–and valuing–how a decision is likely to affect different racial and ethnic groups is an appropriate consideration in the judicial decision-making process. I think the answer is “yes.” Judges need to understand how the legal rules that they articulate in their decisions will operate and effect real people in the real world, beyond the individual litigants. To have that understanding, judges need empathy–“the capacity to understand or feel what another being (a human or non-human animal) is experiencing from within the other being’s frame of reference, i.e., the capacity to place oneself in another’s position.” (Emphasis supplied.

Understood and defined in this manner, empathy does not refer to a judge’s personal feelings about the particular parties before him or her; those subjective feelings have no legitimate place in the judicial decision-making process.

Now, because I know many people, particularly many of my conservative friends and colleagues, will disagree with the view I expressed in this post, allow me to present an example in which a conservative jurist’s empathy was a pivotal factor in his decision in a Fourth Amendment case.

The case is United States v. Jones. The issue presented was whether the police needed a search warrant before they could attach a GPS tracking device to a suspect’s car and record the public movements of the car for a month. Generally speaking, the police do not need a warrant to conduct surveillance of a person’s public movements, the theory being that people do not have a legitimate expectation of privacy in such movements. Based on this general rule, the government argued that a search warrant was not required.

During oral argument, Chief Justice Roberts engaged in the following colloquy with Deputy Solicitor General Michael Dreeben:

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?  You think you’re entitled to do that under your theory?

MR. DREEBEN: The Justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.
(Laughter.)

 MR. DREEBEN: Under our theory and under this Court’s cases, the Justices of this Court when driving on public roadways have no greater expectation of —

CHIEF JUSTICE ROBERTS: So, your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

MR. DREEBEN: Well, equally, Mr. Chief Justice, if the FBI wanted to, it could put a team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets, and they would thereby gather —

See Transcript of Oral Argument at pp. 9-10.

The government lost the case. A unanimous Supreme Court decided that the Fourth Amendment required the government to obtain a search warrant under the circumstances of the case. Pardon the double negative, but no one will ever convince me that empathy was not a factor in the decision. I am absolutely convinced that Chief Justice Roberts and his conservative colleagues voted as they did because they had the capacity to imagine themselves in the position of the defendant. Empathy is not a liberal or conservative quality. It is a human quality. Properly understood, it should also be a judicial quality.