'Empathy': Does it belong on the Supreme Court?

Will empathy bring bias to judicial decision making?

“Empathy” is suddenly a dirty word, said Sheryl Gay Stolberg in The New York Times. The ability to put oneself in other people’s shoes is usually a positive, and it’s a quality President Obama has said he’d seek in replacing Associate Justice David Souter on the Supreme Court. But ever since Obama nominated Sonia Sotomayor, a Latina who grew up in a Bronx, N.Y., housing project, “conservatives have cast empathy as an epithet.” Empathy, said Republican Sen. Orrin Hatch, “is a code word for an activist judge,” a liberal who uses the law to remake society according to her whims and biases. Other high-ranking Republicans are vowing to find out at Sotomayor’s confirmation hearing this summer if she’ll let her “personal feelings” influence her rulings.

As well they might, said Terry Eastland in The Weekly Standard. Even though Obama and Sotomayor are now avoiding the word “empathy,” the president has made it clear what he means by it. After voting against confirming the highly qualified John Roberts as chief justice, then­–Sen. Obama explained, “We need somebody who’s got the heart, the empathy,” to “understand what it’s like to be poor or African-American or gay or disabled.” At Obama’s University of Chicago, or Sotomayor’s Princeton, said Michael Gerson in The Washington Post, students are taught that judicial impartiality “is a fraud perpetrated by the privileged.” Since the rich and privileged already operate the other levers of power, the “Supreme Court justices should favor socially unfavored groups.” Do Americans want justices whose goal is to even up the score of life, or who interpret the law without bias?

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.


Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up
To continue reading this article...
Continue reading this article and get limited website access each month.
Get unlimited website access, exclusive newsletters plus much more.
Cancel or pause at any time.
Already a subscriber to The Week?
Not sure which email you used for your subscription? Contact us