A Jurisprudence of Empathy Undermines the Rule of Law: Sotomayor Edition

Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law.  Recall that President Obama, the most famous advocate of this kind of  jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.

The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust.  There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).

The majority opinion made short work of Puerto Rico’s position. The exclusion of Puerto Rico from the definition of a state is expressly limited to the question of who may be a debtor. It thus does not affect the prohibition that prevents states, the District of Columbia, and Puerto Rico from creating municipal bankruptcy laws of their own. Moreover, it would be surprising, to say the least, if Congress did not provide a clearer statement of Puerto Rico’s power to legislate in a manner prohibited to every other state in the union. There is a well-known axiom that legislatures are presumed not to hide elephants in mouse holes.

Justice Sotomayor acknowledges, as she must, the force of the Court’s “syllogism”. But she nevertheless would interpret the exclusion to allow Puerto Rico to create its own municipal bankruptcy law, because passing such a law is the “only existing legal option for Puerto Rico to restructure debts that could cripple its citizens. ” She then details possible bad effects, like rolling blackouts, the failure to pass a municipal bankruptcy law might entail. Her factual claim is perhaps not quite accurate. Puerto Rico could persuade Congress to pass a law permitting the restructuring of debts and has been in fact trying to do just that.  But more importantly, her argument here does not seem related to any possible analysis of the meaning of the statute, but is an emotional appeal.

This is not the first time Justice Sotomayor has permitted empathy to drive her decision making.  In Schuette v. Coalition to Defend Affirmative Action she wrote an opinion that was five times as long as any other in the case and the end of which reads more like an impassioned plea for affirmative action than a piece of legal analysis. There she claimed that the state of Michigan’s ban on affirmative action violated the Fourteenth Amendment’s  Equal Protection Clause. Thus, for Justice Sotomayor, a law that mandated equal treatment with respect to race violated a constitutional provision that mandates equal treatment. Her selective empathy for certain kinds of students was sufficient to elide the meaning of a constitutional text.

Thus, a jurisprudence of empathy can erode the plainest legal text.  Once empathy is empowered, it knows no bounds in the cases that stir a judge’s deepest emotions, which in Justice Sotomayor’s case include racial and ethnic preferences and her ancestral home.  This jurisprudence is a clear and present danger to the rule of law.

Reader Discussion

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on June 20, 2016 at 08:21:16 am

"Thus, a jurisprudence of empathy can erode the plainest legal text. Once empathy is empowered, it knows no bounds in the cases that stir a judge’s deepest emotions, which in Justice Sotomayor’s case include racial and ethnic preferences and her ancestral home. This jurisprudence is a clear and present danger to the rule of law." Sotomayor is a disaster. #NeverHillary

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Mark Pulliam
on June 20, 2016 at 11:50:26 am

awwhhh, c'mon Mark! After all, she is *wise*; regrettably. WE are not. she must be right. Let us term this "Wise empathy", shall we? and make it a litmus test for all future Black Robes. Hillary will!

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Image of gabe
on June 20, 2016 at 13:37:40 pm

How novel is empathy from the bench?

When canons of construction say to interpret law according to its plain meaning except when doing so would lead to an absurd result--well, what is the standard by which to judge whether a result is absurd? In practice, I suspect this means "unless the result would be sufficiently bad for some outcome about which the judge cares."

Similarly, as many judicial critics have noted, efforts to construe laws in a manner consistent with legislative intent look a lot like a judge projecting his preferences onto a text--including preferences derived from empathy.

And consider judicial innovations: The tort of sexual harassment. Warranties of habitability. Warranties of use for intended purpose. Or consider Brown v. Bd. of Education: Finding that segregated schools were unequal, the Court could easily have ordered the school board to go back and make the black schools better (or the white schools worse)--but instead, the Court ordered desegregation. I have to suspect that a court's choice to pursue some innovative legal theory or remedy, rather than following some more well-trodden legal path, is driven by empathy for a litigating party.

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on June 20, 2016 at 15:03:11 pm

Yes, but not when that *empathy* flies in the face of the text and the clear intent of the lawmakers.

You are correct: some level of *empathy* or at least a deference to common sense such that a legal outcome would not be absurd is, and frankly, must be, present in the jurist. Was this not the basis of common law?

Yet given clear evidence to the contrary, one must forswear one's *empathy* and be about the business of "judging" In other words, "do your (judicial) duty, not your emoting."

RE: Brown

A number of legal scholars have criticized Brown for apparently sound *legal* reasons. In a nutshell, they argue: You got a good result but only after some poor reasoning and while using the wrong basis for the right decision.
Could this also be a possible outcome of *empathy* on the bench, albeit somewhat less egregious than the Wise Latina's juridicial misadventures?

Can it be said that Taney was displaying empathy towards his soon-to-be defeated co-miscreants?

Empathy swings both ways and in temporal cycles. Let us at least aspire to (or at least feign) devotion to a more a-temporal determinant.

what say you?

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Image of gabe
on June 20, 2016 at 17:33:13 pm

In my opinion, empathy has no place in appellate jurisprudence beyond the sentence "While we empathize with the appellant..." Empathy is an emotion, and like all emotions is subjective. Appellate jurisprudence is, because of stare decisis, objective. Appelate decisions affect everyone, not merely the litigant whose plight evokes empathy in a particular set of circumstances, and in a particular judge. This is the very seed of the notion "hard facts make bad law." Rights sometimes conflict and resolving legal disputes among those rights,, especially when purporting to "say what the law is" cannot depend on which party has the most emotional appeal.

There is a reason why depictions of justice as a woman with scales include a blindfold. Deciding disputes based on "empathy" is no more likely to result in a just outcome than deciding it upon social standing or wealth or political favoritism. We do not wish to abrogate the right of free speech because puppies are cute, or forego due process to one party because the other has chronic back pain. Empathy is a useful quality to mediate the transactions and associations between specific individuals; it is not a basis for judicial modification of law to avoid hard cases or evade correct but unfortunate outcomes.

We expect serious people, those whose actions affect more than just a person with a heart-tugging story, to put empathy aside, and defer to reason. We expect our state medical boards to remove the licences of physicians whose age related decline imperils patients, no matter how many babies they delivered and how warmly they are thought of. We expect our doctors to put empathy aside in evaluating the risks of long term opioid therapy; and airline officials to ground a pilot whose personal problems inspire not only empathy but excessive alcohol use.. Showing everyone how empathetic you are in an official capacity does not make you a good person. It does not make you wise, or humane, or enlightened. Depending on your job, it might make you dangerous and unfit.

It is of course reasonable that an emotionally healthy judge, even an appellate one, will feel empathy for the plight of certain parties. A professional and competent one will not let it influence her judical opinions.

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on June 20, 2016 at 19:34:48 pm

And here kiddies is what empathy delivers:


Well, it is ONLY the 2nd Amendment - so who cares, right.
I mean it is not like it is the 5th, is it. They would not take property, or trial by jury would they?

Whadda think, kiddies?

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Image of gabe
on June 21, 2016 at 15:20:07 pm

Well, and here we go again my empathetic friends:


in which a SCOTUS decision hinges upon the impassioned prose of W E B Dubois and T. Coates - but, regrettably, no James Madison.

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Image of gabe
on July 11, 2016 at 00:21:30 am

No your wrong. Your statement is filled with inconsistency and improbability. She is not smart, just a smart ass Hispanic who wants to erode our system with her Third Generation racism and bigotry against white people. Her entire scope of empathy has not only underminded the law but it's thoroughly diametric and nefarious to the preservation of the institution and the humanity of non-Hispanics, non-Mexicans and non-Blacks. This is Hispanic privilege at its most powerful and influential best. Obama was and still is a disaster and all the minorities he felt necessary for "change" he appointed to office and the Supreme Court only instigates a response out of those he has pushed aside into the dark corners of socioeconomic and political existence--Ahem, white people! The true disenfranchised and marginalized and economically destitute are whites. Sotomayor is out for one thing and that is the growth and security and preservation of her homeland. Yet, no one calls her a racist. Nevertheless, when a white person acts upon the growth, security and preservation of his/her homeland and race of people he/she are blatantly and erroneously called a racist and bigot.

I earnestly and vehemently pray Donald Trump destroys Hillary Clinton in the presidential race. Indeed, a time for "change" is now. The objective conditions are ripe. Mrs. Clinton is an intimate friend of Sotomayor and minorities. She cares nothing for her own people. White people are losing out. We are being attacked, literally on the streets by gangs of blacks and Mexicans and stripped naked, beaten and bloodied and robbed of our belongings. Entire schools systems are predominantly black and Mexican and Hispanic. This is black and Hispanic privilege. There are hundreds of high schools, colleges and universities that are historically or predominantly black or Hispanic. This is black and Hispanic privilege.

America is still predominantly white. The majority means a higher percentage of poor white people, not poor black or poor Mexican people. Yet, no one speaks out against corporate welfare reaping riches off the blood, sweat and tears of white people. Sotomayor is racist and bigoted and she should immediately be replaced because all she is doing is enabling moral decay and minority-filled criminality and illegal immigrancy. She is against a wall. She is against preserving and upgrading stringent rules and regulation that would definitively criminalize and detain people who break the law and illegal hop the boarder or crawl under it to enter the U.S.

Illegal immigrancy is against the law for a reason. What use is there for a law if it is not being enforced. Illegal means criminal, Which in turn means these people are not afforded the same rights as legal U.S. citizens. They do not have a right to a driver's license, they do not have a right to work, they do not have a right to an education, they do not have a right to own a house or a business or receive welfare. They are illegal. They do not belong here because they did not come here legally.

Changing the law through the influence of empathetic judgment, be it subjective or not, remains erosive to the livelihoods and future of legal U.S. citizens. I for one am tired of feeling like a stranger in my own country of birth and then being victimized by illegal Mexicans and Salvadorians and Guatemalans who have taken two jobs from me already in the past. I worked for eight years at an auto factory and to be let go for a fucking Mexican has continued to outrage me till this day.

Enough is enough! Enough is enough! Enough is enough!

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J.D. Rollins

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