Empathy and the Supreme Court

By Cliff Springs

Few things that I’ve heard in recent memory have frightened me as much as President Obama’s expressed desire to appoint an “empathetic” judge to the Supreme Court—and if you know and appreciate anything about the structure of how this country was founded and how it is supposed to work, then it should frighten you too.  Whether or not you are an Obama supporter, nobody in this country should embrace such a misguided view of the purpose of the Supreme Court.


Now, I have no problem with empathy.  Empathy is wonderful and necessary in civilization.  There are many opportunities in life for empathy to be manifested by individuals, civic organizations, churches, hospitals, you name it.  The Supreme Court is not one of them.


Lady Justice—the blindfolded statuette holding the balanced scales that symbolizes American justice—is blindfolded for a reason:  because justice should be blind.  Everyone in this country should have equal access to and equal opportunity for justice to be fairly and evenly applied.  Perhaps one could argue that the application of this ideal has fallen short of perfection, but it has been and remains the closest thing to that goal that any system of justice has achieved in all of human history.


Now some of you might say that empathy does have a place in our courts.  We’ve all heard stories of creative judges who sentence a youthful offender to some form of community service designed to help set the youth back onto the straight and narrow road. On one hand, this sounds like a good idea—particularly if it works.  On the other hand, what about the unfortunate individual—who might be just as ripe for an attitude adjustment—who finds himself standing before the judge of tough love, or worse yet, the judge who is proudly intolerant of lawbreakers? 


Don’t get me wrong—any one of these three types of judges may be practicing a perfectly functional form of corrective sentencing.  I don’t necessarily have a problem with any of them on a lower court level (I’ll get back to the Supreme Court in a minute).  The problem with allowing such wide ranging application of sentencing is that it is wholly and unfairly uneven.  Why should one courtroom dole out creative, perhaps even lenient, sentences while another is hard line by-the-rules?  Does this sound like the ideal way for justice to be meted?


Now let’s take a look at the Supreme Court.  The Court’s purpose in actually very simple:  to interpret the laws in light of the Constitution.  Laws cannot violate the Constitution and should not (as a general rule) violate precedent.  But we all know that for almost a century, the court has completely overstepped its authority.  It has frequently found new laws and established indefensible precedent by reading between the lines—essentially a back door to discovering new, hidden laws that would never stand up to the scrutiny of the legislative process. 


A mysterious “right to privacy” was conjured from the vapors of Constitutional ink and led to the Roe vs. Wade decision that legalized abortion.  Even sitting justices who do not anticipate Wade being overturned readily acknowledge that the rationale leading to the ruling was seriously flawed.  I find it amazing that many who support abortion rights resulting from this phantom “right to privacy” that appears nowhere in the Constitution have such tremendous difficulty reading the verbatim text of the right to bear arms.  When unwritten words are given greater weight than those clearly in print, our society has evidently taken up residence on the funny farm.


Thurgood Marshall is quoted as describing his judicial philosophy as the following:  “I do what I think is right, then wait for the law to catch up.”  Wow!  A Supreme Court judge should never, never, never, ever do “what he thinks is right”!  The only thing he or she should ever do is determine what the law says—regardless of whether or not the law is good, fair, or just (unless it contradicts the Constitution).  Emotions, life experiences, race, ethnicity—none of that should ever come into play from the judiciary.  It’s fine for those things to impact legislation—but Congress should be the first and only entity to take them into account.  To put it more simply, the Supreme Court should function in virtual isolation—as if their only knowledge is of the law and Constitution.


If you’re not paying attention, it may sound as if I’m a cold-hearted monster.  Keep in mind that by the time cases get to the Supreme Court, compassion is rarely the subject matter.  The law is the issue at hand—what does the law say (not “what should it say?”). 


Frankly, I struggle to understand why anyone in their right mind would tolerate the abuse of this clear separation of powers.  Because of this lack of understanding—or respect—for American power structure, our society continues to conveniently set aside the wonderfully balanced system established for us by our founding fathers in order to mold and shape the world into some legally idealistic goal of what we wish it would be.  As we do so, I genuinely fear that we are pulling the thread that unravels the entire dress of Lady Liberty.



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