Our own Robert Justin Lipkin poses a broader question: "What's Empathy Got To Do With It?" and then replies to the right side of Mirabeau's "geography of the Assembly": "Is 'Empathy' a Code Word for Judicial Liberalism?"
Daniel Solove of Concurring Opinions: "What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice"
Michael Dorf on "Empathy and Justice"
My favorite legal ethicist, Monroe Freedman, "On Empathy in Judging"
Douglas Berman of Sentencing Law and Policy fame: "Prosecutorial power, victims rights, sentencing judgments and judicial empathy"
Last but not least, Susan Bandes at Balkinization illustrates empathy by way of the oral argument in Safford Unified School District v. Redding: "Why is Empathy Controversial? Or Liberal?"
- Bandes, Susan A. "Empathetic Judging and the Rule of Law," (July 8, 2009). Cardozo Law Review, 2009: 103. Available: http://ssrn.com/abstract=1431230
- Barnes, Allison and Paul Thagard, "Empathy and Analogy," Dialogue: Canadian Philosophical Review, 36 (1997): 705-720. [Although I don't share their philosophy of mind assumptions, there's much of interest in this article.]
- Goldie, Peter. The Emotions: A Philosophical Exploration. New York: Oxford University Press, 2000. See "empathy" in the index.
- Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge, UK: Cambridge University Press, 2001. Again, see the index, but especially pp. 327-335.
- Slote, Michael. The Ethics of Care and Empathy. New York: Routledge, 2007.
- Solomon, Robert C. True to Our Feelings: What Our Emotions Are Really Telling Us. New York: Oxford University Press, 2007: 66-71.
- Stueber, Karsten R. Rediscovering Empathy: Agency, Folk Psychology, and the Human Sciences. Cambridge, MA: MIT Press, 2006.
- Stueber, Karsten, "Empathy," The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/empathy/
Update: Once again, Michael Hiltzik of the Los Angeles Times has a column on point, this time explaining how the august Oliver Wendell Holmes demonstrated a disturbing lack of empathy in Buck v. Bell, 274 U.S. 200 (1927) :
[....] Holmes, perhaps the most revered of all Supreme Court justices, was always proud of his opinion in Buck vs. Bell, which upheld a Virginia law allowing the forced sterilization of "mental defectives." Yet the terse ruling proclaims, in each of its four chilling paragraphs, the narrow elitism of his personal life experience. And its consequence was tens of thousands of ruined lives over the next half-century. [....]
Is the law a set of immutable principles brought to earth on, say, the wings of heavenly messengers to be decoded robotically by human agents distinguished only by their power of intellect? Or is it a living institution, evolving with society, incorporating an ever broader and deeper definition of American values as the definition of "American" itself becomes broader and deeper? In other words, did Justice Holmes' opinion in Buck vs. Bell reflect basic legal principles or establishment culture?
The case of Carrie Buck arose at a time when the pseudo-science of eugenics had achieved broad currency. Eugenics held that intelligence was an inherited trait, and that the "feeble-minded" or "socially inadequate" should therefore be forcibly sterilized to preserve the human race. As the historian William E. Leuchtenburg observed in a 1989 essay, the target group encompassed the "wayward," the tubercular, the "blind, deaf and deformed," orphans, paupers and the homeless. Eugenicists seemed wholly untroubled by "the transparent class bias, not to mention the heartlessness toward the handicapped, in this classification scheme," he wrote.
When opponents of Virginia's sterilization law brought her case to the Supreme Court, Buck was 18 and a resident of the State Colony for Epileptics and Feeble Minded, where Superintendent J.H. Bell held the authority to order the sterilization of his wards---"under careful safeguard" of their due process rights, Holmes would write.
Holmes accepted at face value the state's contention that Buck was "a feeble-minded white woman, . . . the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child." Upholding society's interest in avoiding the "transmission of insanity, imbecility, etc.," he produced one of the most infamous sentences in the annals of the court. "Three generations of imbeciles," he wrote, "are enough."
("Imbecile" was then a technical classification in eugenics -- a step above "idiot" and below "moron.")
Might the outcome of Buck vs. Bell have been different were the court not monolithic? Leuchtenburg thinks so. "It's hard to believe that one or two women justices might not have made a difference," he told me from his home near the University of North Carolina, where he is a professor emeritus. "They might have made the other justices confront what was at issue." [....]
Certainly Holmes' background showed. His upbringing as the son of an eminent Boston physician, his Harvard education and experience as a commercial lawyer arguably blinded him to the humanity of those whose lives fell outside the scope of his experience.
What he missed in his eagerness to keep Carrie Buck from procreating was the shallowness of the state's judgment of her. There was no evidence of her or her mother's "feeble-mindedness" -- just of an irregular lifestyle that elicited "the contempt of the well-off and well-bred," as one of her champions wrote.
A lawyer who met her later found her reading a newspaper and helping a friend with a crossword puzzle. As for her child, who was seven months old when a social worker condemned her for having a "look . . . that is not quite normal," she maintained adequate grades in school but died at age 8.
We can't condemn Holmes alone for the travesty of Buck vs. Bell. It was an 8-1 opinion, with two of the court's outstanding liberals, Louis D. Brandeis and Harlan F. Stone, acquiescing in silence. Conservative Justice Pierce Butler issued the lone unwritten dissent.
We can, however, take it as a lesson in how time and diversity can transform even an institution as precedent-driven as the Supreme Court. It's impossible to say how Sonia Sotomayor's personal history, much less her "empathy," will play out on the court, assuming she's confirmed. At Berkeley, she didn't predict that a Latina justice would steer the court in any particular direction. And no matter where they stand on the political spectrum, justices have a way of confounding the expectations of their presidential sponsors.
But to deny that the character and experience of judges helps to make law is foolish. Virginia sterilized more than 7,500 men and women before ceasing the practice in 1979 -- second only to California, where 20,000 operations were performed. Nationwide, the toll was 60,000. How many would have been saved, one wonders, had the court showed a little "empathy"?