For the upcoming vacancy on the Supreme Court, President Obama has announced that he will seek “somebody with a sharp and independent mind and a record of excellence and integrity.” But he also wants his nominee to be
someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. [emphasis added]
This is not a surprise: in The Audacity of Hope, Obama said that the capacity to understand others is “at the heart of my moral code.”
Obama cited as an example of a Supreme Court case where empathy would have been appropriate Ledbetter v. Goodyear, a wage-discrimination case. In 2007, the Supreme Court reversed a lower court’s ruling in favor of Ledbetter because she filed her suit after the statute of limitations had expired.
I failed to think immediately of a pithy but scathing comment on this, and Sal disapproves of me gnashing my teeth for too long. So I sent the idea of empathy as a requirement for a Supreme Court justice down to my subconscious to percolate. (Thank you, Jean.) And presently my subconscious said: What happened to a "government of laws, not men"? Isn't that in the Constitution?
In fact, it's not. John Adams, the second president of the United States, seems to have been the first American to advocate “a government of laws, not of men.” Adams rose to national prominence and became one of the most influential Founding Fathers because he was thoroughly versed in the history of law and was able to explain clearly how a proper government ought to function. His summary of his thoughts on this matter, Thoughts on Government, Applicable to the Present State of the American Colonies, was written in May 1776 at the request of his fellow delegates to the Continental Congress.
[Recent happenings] will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.
In Thoughts on Government, Adams set out a plan for a separation of powers, including an executive branch, a bicameral legislature, and an independent judiciary. Of the judiciary, he wrote:
The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.
Many of the earliest state constitutions show the influence of Adams’s Thoughts on Government. The Massachusetts Constitution (1780), for example, established a balance of powers in which the executive and legislative powers were required to keep strictly to their own domains, and “the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
The United States Constitution, drafted in 1787, echoes Adams’s Thoughts regarding the tenure of justices:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Article III, section 1)
The Constitution sets out no qualifications for justices of the Supreme Court, and only one requirement. According to Article VI, Clause 3:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
This brings us back to Obama’s possible nominees, and whether empathy is a necessary or desirable trait in a Supreme Court justice.
What would showing empathy mean, for a Supreme Court justice? It would mean that he could rule according to his emotions, if he thought the law was harming someone who deserved better. It would mean that he could hold his emotions above the Constitution that he had sworn to uphold. It would mean that at his whim, he could overturn even a clearly written law that conformed with the Constitution in every respect.
In his professional role, a justice should be passionate about the Constitution he is sworn to uphold. But with respect to the particular people who come before him, he should be heartless. His feelings about them are not a proper standard of judgment. If we allow kindness a foothold, we also allow malice. If we allow either one, we have a government not of laws, but of men, and (as John Adams would surely have recognized) it does not matter whether the man is a king, a tyrant, or a judge.
If a person goes about his life and business on the assumption that by obeying the law, he will have the protection of the courts – then if a dispute arises, he must have his day in court, and a judge must decide if he is in the right, in strict accordance with the law.
The only alternative in a rational society is for parties who have a working arrangement to agree to binding arbitration in case of disputes. In that case, disputes are settled by an impartial outsider who may or may not act in strict accordance with the law. From arbiter, the Latin name for this impartial outsider, English derives the word “arbitrary,” which has come to mean random, capricious, or erratic. A Supreme Court judge who acted on empathy rather than strictly upholding the law would be acting arbitrarily. In doing so, he would make long-range planning of one’s personal or business life impossible. One would never know what action might be declared illegal, simply because a judge felt sorry for the person on the other side of the dispute.
President Obama lectured on constitutional law at the University of Chicago for eleven years. He has no excuse for not knowing that a judge who acts on empathy is violating the principles he swore to uphold.
Recommended Readings from Ayn Rand and Objectivist Scholars
- Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
- See also the recommended readings for Wanted: Supreme Court Justice.
- Adams, John. Novanglus, or, A History of the Dispute with America, From Its Origin, in 1754, to the Present Time. 1774: with a survey of the rule of law since ancient times (search “government of laws”).
- Adams, John. Thoughts on Government, Applicable to the Present State of the American Colonies. 1776.
- Wikipedia, “Rule of Law.” (Much of the historical section simply repeats Adams’s works.)
- Kantor, Jodi. “As a Professor, Obama Held Pragmatic Views on Court.” New York Times, 5/3/2009.