Supreme Court Could Use More Empathy

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U.S. Senate Could Benefit From Less Sophistry

Guest Column
by David Gespass

The headline to Jeff Sessions’ op-ed in the July 13 Birmingham News (no link available on their al.com Website) promised a fair hearing for Sonia Sotomayor. But the article itself raises questions about whether Senator Sessions was prepared to provide one.

He initially claims that, if confirmed, Judge Sotomayor “will have the power to define the meaning of our Constitution,” which is certainly an exaggeration. She would be one of nine justices and only a majority can make such a decision. This is not an unimportant distinction, since the collective decision-making of the Court can only be enhanced if the backgrounds of the justices are diverse.

More to the point, he asserts that it is wrong to expect a judge, because of her life experiences, to have empathy, claiming that showing empathy to one party demonstrates prejudice to another. Sessions is simply wrong if he is claiming that the judges he would support would not show either empathy or prejudice.


It is well known, for example, that Clarence Thomas –- undoubtedly an ideal justice from Sessions’ point of view –- emerged from his usual sphinx-like silence during oral argument in the case of Virginia v. Black to argue, with unusual passion, that the only purpose of cross-burning is to inculcate fear and terror. By so doing, Thomas is generally credited with ensuring that the Court would uphold the constitutionality of Virginia’s law criminalizing cross-burning.

Does Sessions claim that Justice Thomas’s empathy for the victims of Klan violence should not have been a factor in his assessment of the law or is he only concerned with empathy for those he considers the wrong people?

When Thurgood Marshall sat on the Court, he was alone among the justices in having represented clients facing the death penalty, in having represented victims of race hatred and in having experienced such prejudice himself. Perhaps his most profound influence on the Court derived from that perspective and the personal experience he was able to impart to the other justices when they deliberated in conference. No less a conservative light than Chief Justice Rehnquist acknowledged and recognized the importance to the Court of Marshall’s life experience.

Presumably, Sessions also thinks less of Justice Blackmun for his dissent in DeShaney v. Winnebago County Department of Social Services. The majority of the Court found that the social workers could not be held liable for their failure to act on numerous and unmistakable indications of severe abuse of Joshua DeShaney at the hands of his father, who finally beat his son into a coma. Repeated beatings caused such severe brain damage that he is expected to spend his life in an institution.

Justice Blackmun, in dissent, wrote of “poor Joshua,” whose story appeared irrelevant to the majority. In short, Justice Blackmon displayed empathy for the victim while others maintained such dispassionate objectivity they were not moved by the near-death of a defenseless child while state workers, whose job it was to protect him, did nothing.

I would take a bit more empathy and bit less detachment in my judges. It is a common outcome of lack of judicial empathy that the victims of egregious violations by government actors are uncompensated. Indeed, more often than I would wish, Judge Sotomayor has displayed precisely such a lack of empathy for victims of police misconduct.

Does Sessions really believe that the other justices do not bring their personal beliefs and prejudices to bear in their decisions? Does he really think that Scalia’s Catholicism, not to mention Thomas’s, Alito’s and Roberts’s, has no effect on how they view such issues as abortion and gay rights? Does he really believe that these stalwarts come to the bench as tabulae rasa unsullied by human emotion, judicial automatons who digest the facts of a case, run them through their computer-like memory banks of brains, find the appropriate precedents and render their decisions?

One would hope not, because it was that approach that led to Chief Justice Taney holding in the Dred Scott case that African-Americans had “no rights which the white man is bound to respect.” After all, they had no rights in the past, there was no precedent for them to have any rights, so why would one expect them to have rights going forward?

Finally, Sessions’ complaint about Judge Sotomayor’s decision in the New Haven firefighters case is more than a bit disingenuous. Of the 13 judges who considered the case, eight held in favor of the city of New Haven. A majority of five on the Supreme Court ruled otherwise, but Judge Sotomayor’s decision is hardly disqualifying. There is a long history of job tests that fully qualified people of color or women do not pass and which have been proven to be unreliable indicia of future success.

Looked at from the point of view of firefighters of color, one must recognize that the racially skewed results of the exam create at least the reasonable inference that the test discriminated against them in practice. For years, white society discriminated against people of color, insuring whites would get the best jobs and the highest positions. Now that discrimination is illegal, the Supreme Court is insuring that same outcome in the name of prohibiting discrimination.

Chief Justice Jackson pointed out that the Supreme Court is not the final court because the justices are infallible, but rather is infallible because it is the final court. Such humility would be welcome today, on the Court and in Congress.

While Judge Sotomayor would not have been my first choice to fill the vacancy left by Justice Souter’s retirement, I think the Court would be well served by the addition of a wise Latina woman. The country would be well served by justices who displayed a little more wisdom and a little less sophistry.

Davis Gespass is an attorney in Birmingham, Alabama and president-elect of the National Lawyers Guild.

© 2009, Glynn Wilson. All rights reserved.

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