John Stewart had some fun the other night mocking conservative politicians and talking heads for criticizing Obama's desire for an "empathetic" Supreme Court justice, who will make legal decisions, in part, by "identifying with people's hopes and struggles."

The Daily Show With Jon Stewart M - Th 11p / 10c
Justice Is Bland
Daily Show
Full Episodes
Economic Crisis Political Humor

First of all, I can't imagine this is good politics - do voters really want a party that brags of their callousness? I know empathy is a code word for "activist judges," but it's still a noun with the following definition: "the ability to understand and share the feelings of another." Not such a terrible thing, even for a judge.

I also think the conservative argument fails on psychological grounds. After all, the absence of empathy isn't great jurisprudence: it's psychopathy. Here's how I put it in my book:

What causes psychopathy? On most psychological tests, psychopaths appear perfectly normal. Their working memory isn't impaired, they use language normally, and they don't have reduced attention spans. In fact, several studies have found that psychopaths have above average IQ's and reasoning abilities. Their logic is impeccable. But this intact intelligence conceals a devastating disorder: psychopaths are dangerous because they have a damaged emotional brain.

When normal people are shown staged videos of strangers being subjected to painâ¯like a powerful electrical shockâ¯they automatically generate a visceral emotional reaction. Their hands start to sweat and their blood pressure surges - they are automatically sympathizing with the suffering. But psychopaths feel nothing. It's as if they were watching a blank screen. Most people react differently to emotionally charged verbs like kill or rape than to neutral words like sit or walk, but not psychopaths. The words all seem equivalent. When criminologists looked at the most violent wife batterers, they discovered that, as the men became more and more aggressive, their blood pressure and pulse actually dropped. The acts of violence had a calming effect.

When you peer inside the psychopathic brain, you can literally see this absence of emotion. After being exposed to fearful facial expressions, the emotional parts of the normal human brain show increased levels of activation. So do the cortical areas responsible for recognizing faces. As a result, a frightened face becomes a frightening sight; we naturally internalize the feelings of others. The brains of psychopaths, however, respond to these fearful faces with utter disinterest. Their emotional areas are unperturbed, and their facial recognition system is even less interested in fearful faces than in perfectly blank stares.

The problem of psychopaths, and the fact that they're more likely to commit acts of instrumental violence, teaches us something interesting about decision-making in moral, legal and ethical situations: these difficult, value-laden decisions require sympathy. We abhor violence because we know violence hurts. We treat others fairly because we know what it feels like to be treated unfairly. We reject suffering because we can imagine what it's like to suffer. Our minds naturally bind us together.

Adam Smith, the 18th century philosopher, was there first. Although Smith is best known for his economic treatise The Wealth of Nations, he was most proud of The Theory of Moral Sentiments, his sprawling investigation into the psychology of morality. Like his friend David Hume, Smith was convinced that our moral decisions were shaped by our emotional instincts. We were good for essentially irrational reasons.

According to Smith, the source of these moral emotions was the imagination, which we used to automatically mirror the minds of others. (The reflective mirror, which had recently become a popular household item, is an important metaphor in Smith's writing on morality.) "As we have no immediate experience of what other men feel," Smith wrote, "we can form no idea of the manner in which they are affected, but by conceiving what we ourselves should feel in the like situation." This mirroring process leads to an instinctive sympathy for our fellow manâ¯Smith called it "fellow-feeling"â¯which formed the basis for our moral, legal and ethical decisions.

In other words, we banish empathy as a requirement for our judges at our own peril. Our moral decisions are fundamentally emotional decisions, which are rooted in the ability to imagine what someone else is feeling.

More like this

Here's a new interesting new paper on the emotional deficits of the psychopathic brain, via sarcastic_f: The understanding that other people's emotional states depend on the fulfilment of their intention is fundamentally important for responding adequately to others. Psychopathic patients show…
It's good to have Gladwell back. I've missed his writing these last few months. (To learn about his next book, check out Kottke.) His article this week was on the (pseudo)science that is criminal profiling: In the case of Derrick Todd Lee, the Baton Rouge serial killer, the F.B.I. profile described…
On Monday, I posted about some recent imaging work documenting the way the brain distinguishes between "personal" and "impersonal" moral dilemmas. Now comes a new Nature paper from a medley of researchers documenting how damage to a single brain region - the ventromedial prefrontal cortex (VMPO) -…
The latest issue of Nature has a thought-provoking article on new research trying to understand the psychopathic brain. On most psychological tests, psychopaths appear perfectly normal. Their working memory isn't impaired, they use language normally, and they don't have reduced attention spans. In…

For every person rewarded by empathy in the Supreme Court, someone else is punished because they are less emotionally appealing. A Supreme Court that makes beauty queens is also a Supreme Court that makes dalits, which is to say it is a tyranny.

Wow, just as I was enjoying the last tasty bits of this, I saw a bit about the RNC's move on Michael Steele. As if I needed yet another example to be the bang at the end of the sentence.

By scottrcrawford (not verified) on 06 May 2009 #permalink

Good points. I think we have to be careful, though--is it really "empathy" we're seeing when we image someone's brain response to another person receiving an electric shock? Many of these studies follow a procedure (expose patient 1 to an electric shock, image patient 1 as patient 2 receives the same electric shock) that doesn't really get at the core of empathy. I think that they make empathizing too easy--they simulate a type of empathy that we are not often called to do: identifying with someone who is feeling the same exact pain weâve just experienced. Real empathy is something infinitely more complex, more about what you describe as "imagination."

It's kind of similar to when people extrapolate fMRI data about "lying" to court cases. The type of "lying" studies that they reference are usually along the lines of asking participants to hold cards in their hand and then say that they have an ace of spades when they actually don't. Not only is this the simplest kind of lie possible, but patients have no motivation to lie in the same way that a person would want to lie to get out of, say, a sexual abuse charge.

Also I recently saw a paper that showed empathy problems in both directions: there are very violent individuals who empathize too MUCH. This makes sense--if a person in a gang, for example, saw one of his members being attacked it's possible that his "overempathy" made him react more violently to the situation.

Anyway. My drawn-out point is that things like empathy and lying are such concept, multifaceted concepts that I think we need to do a better job of qualifying these studies instead of saying point-blank that empathy is good, no matter how much you have of it.

Wrong. The absence of empathy is justice. Judges are like baseball umpires -- at least the should be -- what if umpires started empathizing with batters when calling balls and strikes? You would end up with chaos and not a fun game because pitchers would not know what the strike zone is.

Same with law and society. The foundation of a society built on the rule of law is knowing what the law is. Once the element of knowing what the rules is removed chaos ensues.

Empathy is important for society and how we interact as humans because human interaction is not built on written law but the "social contract." It has no place, however, when the contract is built on the law.

Stick to science Jonah.

There are so many misconceptions wrapped up in this reaction to "empathy" that it's hard to keep track of them all. What Jonah recounts in his book is absolutely right. Justice without empathy is an oxymoron.

What's interesting to me is another neurologically untenable assumption that appears to be accepted without challenge by all commentators -- that the difference between "activist" judges (the bad kind) and "non-activist" judges (the good kind) is as follows: activist judges are bad because they INTERPRET the meaning of the Constitution, the non-activist judges are good because they are somehow able to discern the OBJECTIVE TRUTH of the Constitution, as it was written in 1787, and are dedicated to treating that as sacred text is all cases.

The fundamental error, of course, is that the human brain is incapable of objectively reading anything - brains are not passive input reading devices, we are actively processing, recreating, and INTERPRETING every bit of information that enters our sensory organs ... including our eyes when we are reading the Constitution. This is scientifically beyond dispute, every human brain is an "activist".

So what we have here are simply two different "activist" theories being applied to this external object, the text of the US Constitution. The designation of "activist" to one side by the other is simply a rhetorical device, a debating trick that does not bear on the actual dispute. Its purpose is to distract attention away from the underlying interpretive theory of the "non-activist" side ... by claiming that their theory IS NOT A THEORY, IT IS OBJECTIVE TRUTH.

Whichever theory one holds to, and there are obviously enough arguments for each side that people can build academic careers on both, it is disingenuous to claim that one is a theory and the other is fact. Yet this assumption seems to go unquestioned in this whole debate.

Someone holding a "non-activist" theory may want to argue that the right to bear arms, since is was written in the Second Amendment in 1791, could only refer to firearms that existed at that point in time, because that is the only firearm the founders could have had in mind when they wrote that Amendment. So today, we only have the right to bear muskets, not AK-47s. This is fine as an argument, but please don't tell me it is an objective reading of the Constitution, not an interpretation!

This is one of those conversation, like conversations about torture, which is not only de-humanizing, but also a strange backwards argument by the republicans. Republicans have for many years now defined their party by the emotional response of the voter. The "war on terror", required an empathy for the victims of 9/11. The Pro Life movement requires empathy for an unborn child. Much of politics requires empathy. After all many people voted for Bush because they felt that he was like them. I realize that a Supreme Court Justice is not a political position in this way, but it is a human one. We all want our leaders, and those that have any power over us, to have empathy for our situation. You are right, this seems to me a very bad political move to criticize someone's humanity as a qualification for a Supreme Court Justice.

Supreme court judges should absolutely be empathetic. To use your baseball analogy, The supreme court does not call balls and strikes. The supreme court argues over the strike zone, outlining the boundaries of the strike zone. In this case, the judges must be able to empathize with both the offense and defense to determine the size of the strike zone that will benefit the game of baseball.

Empathy and interest are two vastly different concepts and seem to be confused in some parts of this discussion. No doubt we can all agree that judges absolutely must be disinterested in the cases that come before them. But what if we should postulate judges who were completely unempathic? At that point, what could we look to them to express or determine except interest? And if not interest, then what? Caprice? Pronouncements, as from the empyrean, detached from any social provenance?

Courts, the law, and government itself are social institutions. They could not conceivably function as intended, even as might be intended by the most malevolent tyrant, without an inherent sense of what affects others â empathy. What is justice but the sense that a social relation of whatever description well-comports with the order and expectation of that society, and that I, as judge and member of that society, would willingly myself accept such justice if applied to me? This principle holds even when considering broader concepts, such as universal rights, because we can do so only when we have, or presume to have, reached a consensus on those concepts among the whole of human society. By definition, this would seem to entail far-reaching empathy.

Imagine a judge truly bereft of empathy. Such judge, I should think, would be greatly confused as to why he or she were being asked to listen to the conflicting stories of strangers. What has this to do with me? What has this to do with anyone? or I to anyone else? Because perfect empathy is not a practical concept in selecting judges, we always select persons with a contoured empathy, and we understand that they may not so well determine justice in conflicts when one or more parties are outside that contour. For this reason, it is well to consider the composition of a court, the respective backgrounds and life-experiences of judicial nominees, so that there may be created a forum with the most comprehensive collective empathy by which to assess how the whole society and all citizens may be affected by its judgments.

As to the baseball analogy, can it be that anyone who has carefully watched, let alone played or umpired, the game of baseball might think that balls and strikes are determined in a world of pure objectivity? I paraphrase George Will ("Men at Work"), who himself is retelling an old formulation:
Umpire #1, "There are balls, and there are strikes."
Umpire #2, "There are balls, and there are strikes, and I calls 'em as I sees 'em."
Umpire #3, "There are balls, and there are strikes, but not until I say so."

"Wrong. The absence of empathy is justice. Judges are like baseball umpires -- at least the should be"

I don't think it is always that simple. How, for example, do justices decide the cruel dimension of cruel and unusual punishment? Unusual is normative, but assessing cruelty in any meaningful way requires empathy. Even if justices rely on precedent, at some point along the way, judgments of cruelty, to be meaningful, would be based upon empathic reactions.

While I agree with you that empathy is a good quality, it should be noted that those who tend to elicit the most empathy are not necessarily the ones who always have the law on their side. Sometimes the right thing to do is to abdicate our visceral feelings of empathy in favor of a more thoughtful meta-empathy (i.e. empathy that no injustice is done to anyone, or empathy with people who want the stability of knowing that laws are upheld).

Take, for instance a woman who says that her child gained a severe developmental disorder because of negligence of the obstetrician. We look at the child and his poor mother, and feel nothing but empathy, definitely more empathy than we feel looking at a rich, successful doctor. Let's say the woman works 3 jobs and volunteer for a homeless shelter, and the doctor happens to be rude and arrogant. The child will have to grow up with unfathomable challenges, and the mother needs millions of dollars to adequately pay for his upbringing.

The thing is, this all has no bearing on whether or not the problem was caused by the obstetrician, genetics, or some other cause. The fact that we tend to feel more empathy for the poor family would only be a disservice to justice, if our empathy leads us to gloss over the facts of the case.

I also want to add that I think there is some misunderstanding of the way that conservatives are using the word "empathy." When a conservative gets angry about "activist judges," they are often talking about cases that involve other people or events that are not related to them. If the conservative were a psycopath, he would not care about the results of the trials, so long as they did not involve himself or have major repercussions on himself. The fact that conservatives get so riled up about court cases involving other people is a pretty good sign that they feel empathy- they are upset about what's going on because what is happening to other people matters.

When they claim that empathy shouldn't be involved, I think what they mean is that the individual circumstance of the plaintiff or defendant shouldn't play too large a role in our judgment. They would probably say that they feel empathy for people who expect the law to be upheld, and who expect fairness and attempts at consistency. When they claim to spurn "empathy," I believe what they refer to is only the most direct and obvious form of empathy- i.e. feeling very bad for the life circumstances of one of the people standing before you. Empathy for all people in society who expect justice is more abstract, and therefore, they don't call it "empathy." But this doesn't necessarily mean that they don't feel it.

1. "The supreme court argues over the strike zone, outlining the boundaries of the strike zone." To the contrary, the strike zone is set by the constitution and the laws enacted by the legislative branch.

2. Deciding what is cruel and unusual require analysis not empathy. If empathy is the basis for deciding what is cruel and unusual, the justices would be free to declare something simply "unfair" as cruel and unusual to a particular individual rather than what res judicata and modern western civilization calls cruel and unusual.

Geez, I think you are talking about a whole different set of characteristics here that shouldn't be lumped together into one idea of "emotion." A Judge should have a sense of "Justice" as described by the law. Then, according to what I remember from the Greeks, a Judge will apply the idea of "Mercy" to that law in order to humanize it. Feelings here are very much intertwined with Intellectual Distancing to determine what is right/wrong and best for the whole of society. Imo, a good Judge will always question what is right and what is wrong and what is the best compromise with every decision he/she makes.

Empaths can be very psychopathic (in action). Often they can't keep their feelings to themselves. They can sense every nuance that others feel and often become very manipulative people who can simply get what they want. Very emotional people are generally very self-involved, go hang out with a group of artists for awhile if you don't believe me. They will also usually have the idealistic desires for peace and harmony, all the while stealing your money and husband.

By Longspiralsocks (not verified) on 07 May 2009 #permalink

If Obama had said he wanted to choose the very shortest people as judges based on their height, and Republicans criticized that, would you claim that Republicans were in favor of an all-dwarf court?

Saying that empathy shouldn't be the primary criteria for choosing a judge isn't the same as saying that only psychopaths should be judges.

(Bah, why don't I proofread? Here's what I meant:)

If Obama had said he wanted to choose only the tallest applicants, and Republicans criticized that, would you claim that Republicans were in favor of an all-dwarf court?

Saying that empathy shouldn't be the primary criteria for choosing a judge isn't the same as saying that only psychopaths should be judges.

Psychopaths can understand the difference between right and wrong at an intellectual level, they just can't feel it and so they don't feel constrained by judgments of right and wrong the way feeling people do.

The problem with Jonah's position is that judges, in their professional capacities, are not typically supposed to be making judgments of right and wrong. They are supposed to be interpreting the law and applying it. (e.g, a judge who does not agree with capital punishment on moral grounds can not find it unconstitutional for that reason alone.)

As several people have already stated, overly empathic judges are likely to make unprincipled decisions, often racially biased ones. Of course, that doesn't mean that a psychopath would make a better judge. The problem is that psychopaths don't feel any moral responsibility to be a good judge. They will do it only as long as they see it as being it in their best interest.

So you do want a somewhat empathic judge, but not so they can empathize with people affected by his/her decisions. Rather, is just so s/he will take her moral responsibilities seriously.

Empathy has no place in the legal system. Justice is blind. This is the whole point of the judicial system. Feeling are removed and laws are applied. Without this hard fact, we would live in a world of chaos.
As Woppie Goldberg said on Bill Orielly " This is the way I feel.." Bill says, but these are the facts, if you don't use facts you do not live in reality. Woppie says she dosen't care. This is why liberals fail to understand the world and are know only empathy. - which is not reality.

By Steve Mosses (not verified) on 10 May 2009 #permalink

I'm a bit late on this, but it's worth bringing up anyway, I feel. Oliver Sacks reports, in his article 'An Anthropologist on Mars', the following:

Another man, a former judge who is described in the neurological literature, had frontal lobe damage from shell fragments in the brain, and, in consequence, found himself totally deprived of emotion. It might be thought that the absence of emotion, and of the biases that go with it, would have rendered him more impartial -- indeed, uniquely qualified -- as a judge. But he himself, with great insight, resigned from the bench, saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling, and not merely thinking, he felt that his injury totally disqualified him.

Unfortunately, I cannot find any other mention of this particular case.

I have a feeling the whole post went over the heads of a few people arguing against it. There is a valid argument to be made against excessive empathy on the bench, but to deny it in entirety is silly. The lack of empathy is psychopathy, not justice. Empathy provides perspective, the enhanced ability to understand and think about consequences and benefits for other people. Too much empathy hampers the ability to finalize a fair decision and weigh the perspective of the other against the objectivity of the law and the situation. Not enough empathy, likewise, strips you of the ability to make a fair decision by allowing the objectivity of a situation to overbear against a disproportionate human cost.

Legal cases are rarely simple. If the solution was to just be purely objective, and robot your way through the constitution to an answer, all judges would come to the same conclusion. Instead, we have a range, deep and wide, and the founding fathers of the country suggested that we fill the bench with judges all across the range. No, it's about balancing countless immeasurable, of which a safe dose of empathy - along with wisdom, intellect, experience, passion, and a heavy dose of constitutional/legal know-how - is a necessary ingredient.