Apologies for the radio silence - I've been traveling and away from a reliable internet connection. (Taking a break from Google is one of the true pleasures of travel. I'm afraid, however, that it's an endangered pleasure, like train travel. I'm always impressed by all the places, from airplanes to remote beach hotels, that are now wireless.*)
David Brooks has an excellent column today on the emerging neuroscience of morality and the "useful falsehood" of the rational judge:
In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
People without emotions cannot make sensible decisions because they don't know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.
I think that's exactly right, which is why all the political arguments about the necessity or danger of empathetic judges are so silly. People are master confabulators: we so effectively justify our moral intuitions that we're convinced they're not intuitions, but are instead derived from perfectly rational principles. (Only the other side is dependent on the frailties of feeling.) This is why, as Oliver Wendell Holmes Jr. correctly noted, "Lawyers spend a great deal of their time shoveling smoke."
The important questions, of course, concern the practical implications of this "moral intuitionist" view. (For those interested, I discuss the emotions of decision-making, and what they can teach us about psychopaths, at length in my book. See also the work of Jonathan Haidt.) Brooks makes a good point here too:
Is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we're emotional creatures in an idiosyncratic world, it's prudent to have judges who are cautious, incrementalist and minimalist.
Obviously, some decisions call for more than mere minimilism. (See, for instance, the recent decision by the California Supreme Court on Prop 8.) In general, however, the subterranean nature of moral decision-making should make us extremely circumspect of grandiose and overconfident proclamations. Behind those eloquent judicial opinions, after all, is blinkered limbic system, pumping out feelings for reasons we can't begin to explain.
So what should we look for in a judge? Once again, Holmes gets it right: "To have doubted one's own first principles is the mark of a civilized man." If I were a senator, I'd be interested in asking Sotomayor to give an example of a case in which she changed her mind, in which the search for rational-sounding justifications led her to overturn her initial instincts. Too often, we use reason to merely confirm what we already believe. The true mark of good judgment, however, is the use of reason to interrogate what we believe. Rationality won't give us the right legal answers, but it can help us ask the right questions.
*Which reminds me: are we really convinced that all these waves fluttering through the lower atmosphere have no consequences? After all, we know that cell phone transmissions can have a (slight) impact on brain activity?
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Wouldn't it be ironic if the tinfoil hat types were right all along?
The role of emotions in decision making is also very well explained in Damasio's Books.
The English common law concept of "equity" is, among other things, an acknowledgment by the then supreme regal authority that empathy (or from the king's point of view, mercy) is essential to a well-ordered realm. Because truly arbitrary authority is difficult to acquire and excessively costly to sustain, and because practical cases stubbornly refuse to conform themselves to an idealized code of law, it would have become necessary to permit appeals in equity (i.e., to "equalize" judgment through clemency or commutation). Equity allowed consideration of the particular circumstances as to how or why someone may have transgressed. Is every stolen thing worthy of the same punishment? Is every motive or circumstance of the thief to be treated identically? Should my act be treated as theft when the same act of another last year was not? The law in its codification might seem perfectly clear, but even a just law at its most transparent, is uninformed -- ignorant of the pertinent facts and circumstances to which it may be applied, lacking intelligence. Judges supply that intelligence, without which there can be no justice. In itself, the very concept of equity means that law cannot be thought of as self-operative, and once you ask someone to tell you their side of the story, you are either asserting that you have empathy or that you're running a show-trial.
Appellate courts review the decisions of lower courts (in most instances). The majority of cases taken up on appeal are affirmed. The Supreme Court pretty much decides which cases it wants to hear.
One basic thing many people appear to miss is that judicial opinions are not analogous to public opinion, or even personal opinions. The commonly used term "opinion" carries a connotation of idiosyncrasy. To the contrary, in the legal realm, at least at the appellate level, the questions decided upon are rather narrowly defined. Majority decisions and dissenting opinions have to be carefully reasoned out using precedent and logic.
Another term in popular discourse that may be causing confusion is "empathy." Empathy, of course, does not carry the same meaning as sympathy. Whether the concept of rational judges is a 'useful falsehood,' there is room for debate. As you note, empathy and rationality are not mutually exclusive.
Because there are certain domains of activity where agreement on answers can be arrived at using procedures and formulas (e.g., math problems), it's assumed that in an area like law we can do the same thing. But we don't need to know much about neuroscience to recognize that law is not one of those domains of activity.
Consider the legal fiction of the reasonable person--the person who perceives, thinks and acts in a way that we assume to represent everyman. Courts make judgments all the time based upon this legal fiction and those judgments rest heavily upon a judge's assumptions about the minds of others. It is not safe to assume that the reasonable person in the mind of Scalia perceives, judges and behaves in exactly the same manner as the reasonable person in the mind of Judge Sotomayor. So we must look at the capacity for empathy in judges to know something about how they will judge.
A commenter at Volokh had more to say about this.
None of this negates your observations. I'm just making the point that it is almost painfully obvious that the quality of a judge's empathy is inevitably bound with judicial opinion.
George Lakoff had a somewhat mixed reaction to Brooks' piece. I think that I agree more with Lakoff than with Brooks.
There's a Star Trek episode (original series) about a woman who is a "true" empath. She literally feels everything the other person does and it causes her immense pain.
I'm going to have go look it up because that's ALL I remember about the episode! No clue what the plot was. But, the portrayal of empathy has stuck with me all these years. For her sake, I hope Sotomayor does not have empathy anywhere close to that degree.
For what it's worth, as a conservative of many years, I've always viewed empathy as an understanding of another's experience of a situation. For example, saying "just leave" to an abused woman lacks empathy although it is likely what she's eventually going to have to do, the other choice deciding to put up with the abuse. Good advice, thoughtlessly given perhaps?
Empathy recognizes that such a woman may need lots of courage (which someone else is trying to beat out of her) and help and planning to escape. It also recognizes that some women will not ever leave and does not know how to help them. Is this where sympathy kicks in?
It's a combination of the two that keeps most people going. When you say to the family of the deceased at a funeral that you are sorry, you are offering a combination of empathy and sympathy. You can't bring back the dead, but you do have empathy for how they feel and sympathy for their loss.
In reality, it's hard to separate the two emotions. One generates the other. However, empathy is the more difficult of the two to maintain. It sometimes requires walking in the moccasins of someone you dislike for a mile, someone you're not likely to feel immediate sympathy for. Perhaps a southern uneducated redneck?
I hope that Sotomayor meant the average wise Latina woman has had more experience walking in the shoes of others than the average white male. Though, even if that is what she meant, it's rather egotistical to proclaim that your experience is more "valid" than another's. If she merely meant different, that is fine. The problem is that I'm not sure what she meant.
My first son-in-law is Filipino. At least half my heritage is as Scots-Irish-English as it comes and it's "proven" way back. In my family, he was definitely a first. What amazed me is how much like us he and his family are. Or how much like his family mine is.
The marriage was near 10 years ago, but it got me thinking that the similarities are more important than differences, and that differences should be celebrated with that in mind.
It is in the similarities that the law, the Constitution must prevail. To oversimplify -- if it were not for the Constitution and its implicit instructions on how to modify it, precedent, as a legal entity, could not be overcome.
Precedent would have not been favorable to making slavery illegal. Precedent would have supported Jim Crow laws. Our Constitution is our ultimate protection -- and therefore should be used with great caution so as not to dilute it's power and authority.
Congress, on the other hand, seems to have no limit on its legislative process. Nor does the executive branch. Whether our founding fathers intended such, that is what we're left with today. The judicial branch seems to be the only one concerned with the rule of law. I think Sotomayor understands this. And I hope I'm right.
(Speculative)
But an excessive trained empathic ability in some occupations: nurse, physicians, judges... could lead to a desentigration of the self/other distinction.
The judge have to be unscathed in his eogocentric perspective an only a minute away from his mind to understand other´s people minds, because if this would be the case nobody will be punish.
Imagine that we have a superpower ability to put us in other´s people shoes... that would mean we always understand (and made ours) the motivations behind people actions, and at minimum we exonerete them.
"Imagine that we have a superpower ability to put us in other´s people shoes... that would mean we always understand (and made ours) the motivations behind people actions, and at minimum we exonerete them."
Ah yes, to know all is to forgive all.
As prime evidence of emotion overriding a purely rational, case-history basis, US v. Causby seems most apparent.
Funny that no one screamed anything about Judicial Activism at the time, either.
Politicians, demagogues and uneducated experts are quick to not understand how humans, even judges, decide to act, what is right and wrong in legal and moral issues, in tactics and strategies and judgments about everything. Jonah Lehrer has helped us by writing How We Decide. So has Dr. Jill Bolte Taylor in her "My Stroke of Insight". I intend to use both as basic texts for an ethics course I teach young college students at Wilbur Wright college so that they will have a chance to not be misled by the media, experts, pundits and others who do not understand how intelligence requires intelligent emotion, memory, analysis, imagination, etc. Jacques Maritain "The Degreees of Knowledge" or "Distinguis to Unite", Aristotle's Nicomachean Ethics, and Adam Smith's " Theory of Moral Sentiments' all support intelligent understanding of how our emotions are essential parts of our intelligent understanding of the meaning of reality including our laws and their intelligent applications by courts. Experts like media hungry Senators bent on opposing change in an ever changing world are not as willing to educate themselves about how intelligent decision making occurs in the minds of fair, responsible and thorough U.S. Supreme Court judges. All they want to do is be re-elected by persons who think one way about particular hot button issues. If only they would use their time on the cameras to educate the way neuroscientits such Jonah Lehrer and Jill Bolte Taylor educate us.
Myles Glasgow