In defense of judicial empathy

Minnesota Law Review

Volumn 96, Issue 6, 2012, Pages 1944-2015

  Colby, Thomas B ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 84874155955     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (321)

1. Kim McLane Wardlaw, Umpires, Empathy, and Activism: Lessons from Judge Cardozo, 85 NOTRE DAME L. REV. 1629, 1647 (2010).
2. See John Paul Rollert, Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard," 120 YALE L.J. ONLINE 89, 90 (2010), available at http://yalelawjournal.org/images/pdfs/903.pdf (noting that the Left has steadfastly avoided a "scholastic debate over the merits of empathy").
3. See generally Dahlia Lithwick, Teach to America, SLATE (June 4, 2009, 5:18 PM), http://www.slate.com/articles/news-and-politics/jurisprudence/2009/ 06/teach-to-america.html.
4. As Matthew Frank put it, the "line between the Democrats and the Republicans" at these hearings "might be called the 'umpathy' line." See The Federalist Society Online Debate Series: The Sotomayor Nomination, Part II, FEDERALIST SOC'Y (July 13, 2009), http://www.fed-soc.org/ debates/dbtid.30/ default.asp.
5. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) [hereinafter Roberts Hearing] (statement of John G. Roberts, Jr.) ("Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.").
6. Press Briefing by Press Secretary Robert Gibbs (May 1, 2009), available at http://www.whitehouse.gov/the-press-office/press-briefing-press-secretary- robert -gibbs-5-1-09 (statement of President Obama).
7. See CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS 5-8 (2007) (criticizing a popular discourse that presents judges as either nonpolitical umpires or purely ideo-logical politicians);
8. Francis J. Mootz III, Ugly American Hermeneutics, 10 NEV. L.J. 587, 588 (2010) (referring to this rhetoric as "ugly American hermeneu-tics");
9. Todd E. Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & POL. 123, 125 (2011) (lamenting the "legitimacy dichotomy": "the notion that judges faced with constitutional disputes either behave in a democratically le-gitimate manner by dutifully obeying the sovereign people's constitutional in-structions or behave in a democratically illegitimate manner by usurping the role of the sovereign people and imposing their own personal preferences on the rest of the nation").
10. Senator Jeff Sessions was a typical source of this rhetoric. See Confir-mation Hearing on the Nomination of Hon. Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 5-6 (2009) [hereinafter Sotomayor Hear-ings] (Statement of Sen. Sessions) (portraying the Supreme Court selection process as a choice between "impartial and wise judges" who guide us to "ob-jective truth" and a "Brave New World" in which "a judge is free to push his or her own political or social agenda");
11. The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010) [hereinafter Kagan Hearings] (remarks of Sen. Sessions) ("There are two views of the courts. One is the judge as a neutral umpire. The other view is that a judge should be activ-ist . . . [and believe] that they have a right to advance a political agenda."). Of course, when the choice is portrayed in these terms, the "correct" an-swer is obvious.
12. See THE FEDERALIST SOCIETY, 2008 POST-ELECTION SURVEY OF 800 ACTUAL VOTERS, at 5 (2008), available at http://www.fed-soc.org/doclib/ 20081105-PostElectionSurvey11408.pdf (presenting results of a 2008 survey that found that the public overwhelmingly prefers judges who "will interpret and apply the law as it is written and not take into account their own view-points and experiences" over judges who "will go beyond interpreting and ap-plying the law and take into account their own viewpoints and experiences"). If, however, a more charitable picture of the empathic judge is presented, the public is much more receptive.
13. See Jamal Greene et al., Profiling Originalism, 111 COLUM. L. REV. 356, 366 (2011) (presenting results of a 2009 survey that found that fifty-nine percent of the public believes it to be either somewhat or very important for Supreme Court justices to "feel empathy for the people in-volved in a case");
14. James L. Gibson, Expecting Justice and Hoping for Empa-thy, PAC. STANDARD (June 20, 2010), http://www.miller-mccune.com/legal -affairs/expecting-justice- and-hoping-for-empathy-17677/ (presenting results of a 2009 survey that found that two-thirds of the public assigns the highest de-gree of importance to a judge being "able to empathize with ordinary people-that is, to be able to understand how the law hurts or helps the people," and only eight percent rates this characteristic as entirely unimportant).
15. See generally Michael P. Allen, A Limited Defense of (at Least Some of) the Umpire Analogy, 32 SEATTLE U. L. REV. 525 (2009);
16. Theodore A. McKee, Judges as Umpires, 35 HOFSTRA L. REV. 1709 (2007).
17. Neil S. Siegel, Um-pires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701, 702-11 (2007);
18. See Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. REV. 1, 8 (2009) (lamenting that "Senate confirmation hearings . . . bolster the popular fable that constitutional adjudication can be practiced in something close to an objective and mechanical fashion"). Louis Michael Seidman had little patience for Justice Sotomayor's testimony to this effect at her confirmation hearings: How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than ap-plying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indetermi-nate-that the legal material frequently . . . must be supplemented by contestable presuppositions, empirical assumptions, and moral judg-ments. To claim otherwise-to claim that fidelity to uncontested legal principles dictates results-is to claim that whenever Justices disa-gree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers [sic]?
19. See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring) ("I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense 'make' law.");
20. RICHARD A. POSNER, HOW JUDGES THINK 78 (2008) (arguing that neither Chief Justice Roberts "nor any other knowledgeable person actually believed or believes that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires");
21. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989) (discussing and accepting the lawmaking role of judges);
22. If I were a judicial nominee testifying before the Senate Judiciary Com-mittee, and a Senator asked me a question suggesting that principled judges always reach clear answers dictated by the law, I would be tempted to answer by pointing out that Justices Scalia and Thomas-the most favored Justices of the political right-disagreed in twenty cases in the last Term alone. See The Supreme Court, 2009 Term-The Statistics, 124 HARV. L. REV. 411, 414 tbl.I (2010). "Senator," I would ask, "which one of them is the principled judicial umpire, and which one is the hopeless judicial activist?" Justice Kagan came about as close as a nominee can realistically be expected to get to giving an answer along these lines when she testified as to the limits of the umpire analogy: I suppose the way in which I think that the metaphor does have its limits . . . [is] that the metaphor might suggest to some people that law is a kind of robotic enterprise, that there is a kind of automatic quality to it, that it is easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut and that there is no judgment in the process. And I do think that that is not right, and it is especially not right at the Supreme Court level, where the hardest cases go and the cases that have been the subject of most dispute go. . . . [W]e do know that not every case is decided 9-0, and that is not because anybody is acting in bad faith. It is because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.
23. Erwin Chemerinsky, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. REV. 1069, 1069 (2006);
24. see also BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING 91 (2010) (observing that "it was apparent to many that the law has inconsistencies, runs out, and routinely comes up against unanticipated situations and that judges possess a substantial degree of flexibility when working with legal materials");
25. Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. CHI. L. REV. 965, 1036 (2009) ("[E]ven those who rail against so-called 'judicial activ-ism' now generally accept that judges sometimes make law. That reali-ty . . . cannot be denied.") (footnote omitted);
26. Frederick Schauer, Do Cases Make Bad Law, 73 U. CHI. L. REV. 883, 888 (2006) ("[W]hether in the context of pure common law decisionmaking or instead in the context of the supposed 'interpretation' of capacious language in statutes or the Constitution, it is far too late in the day to deny that judges are often . . . engaged in the process of making law.").
27. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 165 (1921) (noting that there are cases in which the law does not dictate a clear answer);
28. Chad M. Oldfather, Error Correction, 85 IND. L.J. 49, 50-51 (2010);
29. See generally Brian Leiter, Re-thinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997).
30. Kagan Disregards Obama View on Empathy, BLOG LEGALTIMES (June 29, 2010, 12:51 PM), http:// legaltimes.typepad.com/blt/2010/06/kagan-disregards-obama- view-on-empathy .html ("As Justice Sonia Sotomayor did a year ago, Supreme Court nominee Elena Kagan backed away today from President Barack Obama's statements about the role of empathy in judging.").
31. Transcript of American Morning, CNN.COM (July 14, 2009), http://archives.cnn.com/TRANSCRIPTS/0907/14/ltm.03.html (remarks of CNN cor-respondent Carol Costello);
32. See, e.g., Rush Limbaugh, A Look Inside the Liberal Mind, RUSHLIMABUGH.COM (June 30, 2009), http://www.rushlimbaugh.com/home/daily/site- 063009/content/01125112.guest.html ("I think it's time to forget holding out hope for liberal judges, folks. They are not like us. They don't look at the judicial system the way we do. They don't look at the law the way we do. . . . They don't look at the law as a means of finding legal adjudications to cases [sic]. They look at the law and the court system as a way to level the playing field according to their view of how it's unfair.").
33. Dennis Prager, Why Reporters-and Judges and Professors-Are Bi-ased, TOWNHALL (Nov. 25, 2008), http://townhall.com/columnists/DennisPrager/2008/11/ 25/why-reporters-and-judges-and-professors-are-biased/page/full/.
34. Matthew J. Franck, Souter Vacancy I: Toward Armistice in the Judi-cial Wars?, NAT'L REV. ONLINE (May 3, 2009, 4:29 PM), http://www .nationalreview.com/ blogs/print/50214.
35. Karl Rove, Op-Ed., "Empathy" is Code for Judicial Activism, WALL ST. J., May 28, 2009, at A13 ("'Empathy' is the latest code word for liberal activism, for treating the Consti-tution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn't pass the legislative branch or, if it did, would generate vot-er backlash.");
36. Editorial, After Souter, NAT'L REV. ONLINE (May 4, 2009, 4:00 AM), http://article.nationalreview.com/393115/after-souter/the-editors ("Empa-thy is simply a codeword for an inclination toward liberal activism. . . . [President Obama] cares about getting another vote for liberal re-sults.");
37. Gary Bauer, Commentary, An Ideological Choice, WASH. TIMES (May 27, 2009), http://www.washingtontimes.com/news/2009/may/27/an-ideological -choice/ ("Mr. Obama has told us what kind of judges he is seeking: judges who feel unconstrained by the plain language of the law or the text of the Constitu-tion, judges who instead will act on their 'empathy,' on their own sense of right and wrong. He wants judges who will legislate from the bench. That is the very definition of judicial activism.");
38. Transcript of Special Report With Bret Baier Panel on President Obama Replacing Justice Souter, FOXNEWS.COM (May 4, 2009), http://www.foxnews.com/ printer-friendly-story/0,3566,518880,00 .html (remarks of Fred Barnes) (arguing that President Obama's claim to be searching for a Justice who understands how law affects people's lives is "what liberal judicial activism . . . is all about. It's entirely results oriented").
39. Charles Krauthammer, Op-Ed., Sotomayor: Rebut, Then Confirm, WASH. POST, May 29, 2009, at A17 (insisting that "conservatism . . . stands unequivocally against justice as em-pathy");
40. Rich Lowry, A Bad Day for Impartiality, NAT'L REV. ONLINE (May 26, 2009, 6:15 PM), http://www.nationalreview.com/articles/227584/bad-day-impartiality/ rich-lowry ("Impartiality has been supplanted by empathy. The old-fashioned virtue of objectivity-redolent of dusty law books and the unro-mantic task of parsing the law and facts-is giving way to an inherently politi-cized notion of judging based on feelings. Lady Justice is to slip her blindfold and let her decisions be influenced by her life experiences and personal predi-lections.");
41. Transcript of "This Week with George Stephanopoulos," ABC (May 3, 2009), http://abcnews.go.com/ThisWeek/story?id=7491153&page=1#.T1FQ0- EgcUJ (remarks of Sen. Orrin Hatch) (dubbing empathy "a code word for an activist judge" and suggesting that empathic judges rule "on the basis of their personal politics, their personal feelings, their personal preferences").
42. See Brian Leiter, Legal Formalism and Legal Realism: What Is the Is-sue?, 16 LEGAL THEORY 111, 112 (2010) (observing that "one might think the popular culture is the last preserve of vulgar formalism").
43. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 863 (1989) (arguing that, for "the vast majority of questions the answer is clear");
44. Frederick Liu, Comment, The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives, 117 YALE L.J. 1947, 1951 (2008) ("Judicial conservatives believe that traditional legal authorities-text, history, and structure-rarely run out; the law almost always yields a single right answer.").
45. See, e.g., Lillian R. BeVier, The Integrity and Impersonality of Originalism, 19 HARV. J.L. & PUB. POL'Y 283, 283 (1995) (arguing that liberals believe that fundamental questions of public policy should be decided by "the Justices of the Supreme Court, guided only by their own notions (or those of some professor or clerk) of what is good for the country");
46. cf. Lee Renzin, Note, Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?, 73 N.Y.U. L. REV. 1739, 1746 (1998) (quoting Sen. Orrin Hatch) ("'We have liberal activists who ignore what the law is, don't care what the law is.'").
47. See Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discre-tion and Deference in U.S. Immigration Law, 71 TUL. L. REV. 703, 728 (1997).
48. See Thomas W. Merrill, High-Level, "Tenured" Lawyers, 61 LAW & CONTEMP. PROBS. 83, 88 (1998) ("We live in a post-Legal Realist Age, when most legal commentators take it for granted that law cannot be disentangled from politics and that legal judgment is driven by the political beliefs of the decisionmaker.");
49. Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 CONST. COMMENT. 461, 461-65 (2009) (lamenting the extent to which this belief has pervaded the legal academy).
50. to view law professors as hopelessly naive for continuing to pay attention to legal doctrine, see H. Jeffer-son Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 DUKE L.J. 1725, 1725 (2009).
51. See, e.g., 156 CONG. REC. S6603 (daily ed. Aug. 3, 2010) (remarks of Sen. Sessions) (attributing future Justice Kagan's judicial views to the fact that "many liberal activists in America have lost faith in the idea of objectivi-ty, which means they have lost faith in the reality of objective truth, the finding of which-the finding of truth-has been the goal, the central focus of the American legal system since its creation");
52. See, e.g., Jess Bravin, Barack Obama: The Present is Prologue, WALL ST. J., Oct. 7, 2008, at A22 (quoting Theodore Olson, former Solicitor General of the United States) (claiming that President Obama "is looking for someone who would make judicial decisions based upon emotions and sympathy and picking the underdog, rather than applying the law");
53. Wendy E. Long, Op-Ed., Opening of a Sorry Chapter, WASH. TIMES, May 4, 2009, at A21 (deriding "em-pathy" as a "lawless standard of partiality");
54. Jessie Weiser, De-fine Empathy, RELIGIOUS ACTION CENTER BLOG (May 21, 2009), http://blogs .rj.org/rac/2009/05/21/define-empathy (quoting Wendy Long, former law clerk to Justice Thomas) ("Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution.");
55. Edward Whelan, Obama's Consti-tution, WEEKLY STANDARD (March 17, 2008), http://www.weeklystandard.com/print/Content/Public/Articles/000/000/014/ 849oyckg.asp ("No clearer prescrip-tion for lawless judicial activism [than President Obama's call for empathy] is possible");
56. For a good place to start for the view among some conservative law professors that liberals want judges to ignore the law, see generally Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631 (1993).
57. Steven G. Calabresi, Op-Ed., Obama's "Redistribution" Constitution, WALL ST. J., Oct. 28, 2008, at A17.
58. see also Lino A. Graglia, Birthright Citizenship for Children of Il-legal Aliens: An Irrational Public Policy, 14 TEX. REV. L. & POL. 1, 11 (2009) ("Justice Brennan never let law, fact, or logic stand in the way of a decision he wanted to reach. He agreed with President Barack Obama that the function of the court was to decide challenging cases on the basis of 'empathy.'" (footnote omitted));
59. Thomas B. Griffith, Was Bork Right About Judges?, 34 HARV. J.L. & PUB. POL'Y 157, 159-62 (2011) (arguing that many liberal intellectuals believe that judges should be results oriented rather than neutral);
60. J. Harvie Wilkinson III, Subjective Art; Objective Law, 85 NOTRE DAME L. REV. 1663, 1664 (2010) (arguing that "evocations of judicial empathy" are indicative of judges who engage in "freewheeling adjudication" and give into temptation "to do justice as they feel it should be done rather than adhering to the strictures of text and structure");
61. John Yoo, Empathy Triumphs Over Excel-lence, ENTERPRISE BLOG (May 26, 2009, 1:03 PM), http://blog.american .com/2009/05/empathy-triumphs-over- excellence/ (suggesting that then-Judge Sotomayor decided cases on the basis of her "'empathy' rather than a correct reading of the Constitution").
62. Orin Kerr, Legal Ambiguity, Empathy, and the Role of Judicial Power, VOLOKH CONSPIRACY (May 13, 2009, 5:51 PM), http://volokh.com/2009/05/13/ legal-ambiguity-empathy-and-the-role-of-judicial-power/.
63. See, e.g., MICHAEL E. MORRELL, EMPATHY AND DEMOCRACY: FEELING, THINKING, AND DELIBERATION 39-66 (2010);
64. Susan A. Bandes, Empathetic Judging and the Rule of Law, 2009 CARDOZO L. REV. DE NOVO 133, 134 (noting that "empathy is a term with no fixed meaning");
65. Justin D'Arms, Empathy and Evaluative Inquiry, 74 CHI.-KENT L. REV. 1467, 1477 (2000) ("Though 'empathy' is a relatively recent term in English, it has already become ambig-uous.");
66. Darrell A.H. Miller, Iqbal and Empathy, 78 UMKC L. REV. 999, 1009 (2010) (noting that scholars have used the term "empathy" to denote a number of different concepts);
67. Bert S. Moore, The Origins and Development of Empa-thy, 14 MOTIVATION & EMOTION 75, 76 (1990);
68. Frederique de Vignemont & Tania Singer, The Empathic Brain: How, When and Why?, 10 TRENDS COGNI-TIVE SCI. 435, 435 (2006) ("There are probably nearly as many definitions of empathy as people working on the topic.");
69. Lauren Wispé, History of the Con-cept of Empathy, in EMPATHY AND ITS DEVELOPMENT 17, 17-37 (Nancy Eisen-berg & Janet Strayer eds., 1987).
70. Then-Senator (and presidential candidate) Obama once wrote in a let-ter to a child, "If you don't already know what it means, I want you to look up the word 'empathy' in the dictionary. I believe we don't have enough empathy in our world today, and it is up to your generation to change that." Doreen Yu, Pinay Girl Writes to Obama, Gets Response, PHILIPPINE STAR (Nov. 7, 2008, 12:00 AM), http://www.philstar.com/article.aspx?articleid=413244.
71. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 408 (11th ed. 2003).
72. The psychology literature emphasizes that true empathy goes beyond perspective taking; there is a necessary component of emotional engagement. See, e.g., Frans B.M. de Waal, Putting the Altruism Back into Altruism: The Evolution of Empathy, 59 ANN. REV. PSYCHOL. 279, 285 (2008) (finding per-spective-taking is only empathy in combination with emotional engagement);
73. Nancy Eisenberg & Janet Strayer, Critical Issues in the Study of Empathy, in EMPATHY AND ITS DEVELOPMENT, supra note 53, at 3, 5 (noting empathy re-quires sharing perceived emotions or "feeling with" another). "Empa-thy . . . requires not only that you can identify another person's feelings and thoughts, but that you respond to these with an appropriate emotion too."
74. SIMON BARON-COHEN, ZERO DEGREES OF EMPATHY 11 (2011).
75. Michael Franz Basch, Empathic Understanding: A Review of the Con-cept and Some Theoretical Considerations, 31 J. AM. PSYCHOANALYTIC ASS'N 101, 119, 123 (1983).
76. See, e.g., Jean Decety & Kalina J. Michalska, Neurodevelopmental Changes in the Circuits Underlying Empathy and Sympathy from Childhood to Adulthood, 13 DEVELOPMENTAL SCI. 886, 886 (2010) (noting that it is im-portant to "distinguish between empathy (the ability to appreciate the emo-tions and feelings of others with a minimal distinction between self and other) and sympathy (feelings of concern about the welfare of others)");
77. Darrick Jolliffe & David P. Farrington, Development and Validation of the Basic Em-pathy Scale, 29 J. ADOLESCENCE 589, 591 (2006) (noting that sympathy and empathy "are distinct and separate constructs" because empathy involves "emotion congruence" whereas "sympathy involves the appraisal of how one feels about the emotions of another").
78. Nadine R. Richendoller & James B. Weaver III, Exploring the Links Between Personality and Empathic Response Style, 17 PERSONALITY & INDI-VIDUAL DIFFERENCES 303, 304 (1994).
79. Robert Plutchik, Evolutionary Bases of Empathy, in EMPATHY AND ITS DEVELOPMENT, supra note 53, at 38, 38-46 (discussing the use of empathy in the evolution and survival of animals and humans);
80. Stephanie D. Preston & Frans B.M. de Waal, Empathy: Its Ultimate and Proximate Bases, 25 BEHAV. & BRAIN SCI. 1, 9-14 (2002).
81. See ROBERT L. KATZ, EMPATHY: ITS NATURE AND USES 58 (1963);
82. Tania Singer, The Neuronal Basis of Empathy and Fairness, in EMPATHY AND FAIRNESS 20, 20 (Greg Bock & Jamie Goode eds., 2007) (noting a lack of empa-thy defines psychopaths who can hurt others guilt-free). Simon Baron-Cohen explains that persons with zero empathy tend to fall into one of two categories. The first includes those with autism or Asperger's syndrome; they have no empathy, but they tend to follow the law and behave "super-morally" as a product of their "systemising" nature.
83. RICHARD A. POSNER, OVERCOMING LAW 381 (1995).
84. Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87 MICH. L. REV. 2099, 2103 (1989).
85. See Kathryn Abrams, Empathy and Experience in the Sotomayor Hearings, 36 OHIO N.U. L. REV. 263, 266 (2010) (noting that some of President Obama's statements about empathy "included a taxonomy of the kinds of posi-tions with which a judge should be able to empathize," but other statements indicated that "Obama's ideal of judicial empathy seems more comprehensive in its reach and less specific in its targets");
86. A tremendous resource in this regard is a website maintained by The Center for Building a Culture of Empathy that purports to collect all of Presi-dent Obama's statements on empathy, in both text and video form. See CEN-TER FOR BUILDING CULTURE EMPATHY, http://cultureofempathy.com/ Obama/VideoClips.htm (last visited Feb. 28, 2012) [hereinafter CULTURE OF EMPATHY].
87. 151 CONG. REC. S10,366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama).
88. See also Carrie Dann, Obama on Judges, Supreme Court, FIRST READ (July 17, 2007, 7:21 PM) http://firstread.msnbc.msn.com/-news/2007/07/17/ 4439758-obama-on-judges-supreme-court (quoting remarks made by then-Senator Obama at a July 17, 2007, Planned Parenthood conference) ("We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.").
89. See, e.g., Teresa Bruce, The Empathy Principle, 6 LAW & SEXUALITY REV. LESBIAN & GAY LEGAL ISSUES 109, 111-13 (1996);
90. Cf. Kenji Yoshino, On Empathy in Judgment (Measure for Measure), 57 CLEV. ST. L. REV. 683, 700 (2009) ("The President has never advocated a model of pure empathy devoid of law.").
91. See Lynne N. Henderson, The Wrongs of Victim's Rights, 37 STAN. L. REV. 937, 942-53 (1985) (discussing the role of victims in American law).
92. BARACK OBAMA, THE AUDACITY OF HOPE 68 (2006).
93. Oprah Talks to Barack Obama, O, OPRAH MAG., Nov. 2004, at 248, available at http://www.oprah.com/world/Oprah-Winfrey-Interviews-Barack -Obama/9.
94. Thus, President Obama insists not only on "depth . . . of . . . empathy" but also on "breadth of . . . empathy." 151 CONG. REC. S10,366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama);
95. cf. President Barack Obama, Remarks at Student Roundtable, Istanbul, Turkey (Apr. 7, 2009) (transcript available at http://www.whitehouse.gov/the- press-office/Remarks-Of-President-Barack-Obama -At-Student-Roundtable-In- Istanbul) ("In the Muslim world, this notion that somehow everything is the fault of the Israelis lacks balance-because there's two sides to every question. That doesn't mean that sometimes one side has done something wrong and should not be condemned. But it does mean there's always two sides to an issue. I say the same thing to my Jewish friends, which is you have to see the perspective of the Palestinians. Learning to stand in somebody else's shoes to see through their eyes, that's how peace begins.");
96. Newshour with Jim Leher: President Barack Obama Is Interviewed (PBS tele-vision broadcast Dec. 23, 2009) ("[O]ne of the things that I think Democrats and Republicans have to constantly do is try to put themselves in the other person's shoes.").
97. Barack Obama, Here's What It Takes to be a 'Full-grown' Man, CHI. TRIB., June 22, 2005, at 27 (quot-ing Obama's Father's Day remarks in 2005) ("Not sympathy, empathy.").
98. see Douglas W. Kmiec, The Case for Empathy, AMERICA MAG. (May 11, 2009), http://www.americamagazine.org/content/article.cfm?article-id=11649 (noting that "one can be empathetic toward all sides of a dispute");
99. Dahlia Lithwick, Once More, Without Feeling, SLATE (May 11, 2009, 7:15 PM), http://www.slate.com/articles/news-and-politics/jurisprudence/2009/05/once- more-without-feeling.html ("Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal out-comes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.").
100. See Geoffrey R. Stone, Op-Ed., Our Fill-in-the-Blank Constitution, N.Y. TIMES, May 14, 2010, at A27 ("If all judges did was umpire, then judicial empathy would be irrelevant.").
101. Indeed, the common law system is centered around the concept of reasoning by analogy, and a judge cannot de-termine whether one litigant or injury is sufficiently like another without be-ing able to empathize with each litigant. See Robin West, The Anti-Empathic Turn, NOMOS (forthcoming 2011) (manuscript at 2-4), available at http://ssrn.com/abstract=1885079.
102. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)
103. quoting Flast v. Cohen, 392 U.S. 83, 96 (1968).
104. 129 S. Ct. 2633, 2637 (2009).
105. New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985).
106. Joan Biskupic, Ginsburg: Court Needs Another Woman, USA TODAY, (Oct. 5, 2009, 11:16 AM), http://www.usatoday.com/news/washington/judicial/ 2009-05-05-ruthginsburg-N.htm.
107. T.L.O., 469 U.S. at 341.
108. Transcript of Oral Argument at 48-49, Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633 (2009) (No. 08-479)
109. 2009 WL 1064200 (question of Justice Souter).
110. Susan Bandes, Why is Empathy Controversial? Or Liberal?, BALKINIZATION (May 25, 2009, 9:48 AM), http://balkin.blogspot.com/2009/05/why-is-empathy- controversial-or-liberal .html ("To resolve the Fourth Amendment issue, the Court must determine how intrusive the search was, how important the government interest was, and whether the government adopted a reasonable means of addressing its concern. To do that, it first has to understand what's at stake for all the liti-gants. That's where empathy plays a role.").
111. United States v. Knights, 534 U.S. 112, 118-19 (2001) (internal quota-tion marks omitted).
112. Kyllo v. United States, 533 U.S. 27, 33 (2001).
113. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
114. Terry v. Ohio, 392 U.S. 1, 30 (1968).
115. See United States v. Drayton, 536 U.S. 194, 194 (2002).
116. 131 S. Ct. 2394 (2011).
117. 384 U.S. 436 (1966).
118. See J.D.B., 131 S. Ct. at 2402.
119. 505 U.S. 833, 877 (1992).
120. Gonzales v. Carhart, 550 U.S. 124, 146 (2007).
121. Linda J. Wharton, Roe at Thirty-Six and Beyond, 15 WM. & MARY J. WOMEN & L., 469, 488 (2009).
122. Casey, 505 U.S. at 893.
123. Alan Brownstein, Taking Free Exercise Rights Seriously, 57 CASE W. RES. L. REV. 55, 81 (2006);
124. see also T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 943-45 (1987) (arguing that "balancing" as a "form of constitutional reasoning" has "become widespread, if not dominant, over the last four decades" and that "balancing has transformed constitutional adjudication and constitutional law");
125. Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30 CONN. L. REV. 961, 963 (1998) (noting that "constitutional law today is dominated by the phenom-enon of 'balancing'");
126. Bradford R. Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161, 1179 (1998) (noting the "innumerable 'balancing' tests [used] throughout constitutional law").
127. In the Supreme Court's own words, "[t]he fact is that, regardless of the terminology used, the precise content of most of the Constitution's civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable." Anderson v. Creighton, 483 U.S. 635, 643-44 (1987).
128. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
129. United States v. Nixon, 418 U.S. 683, 711-12 (1974).
130. See Solem v. Helm, 463 U.S. 277, 286-90 (1983) (holding that a crimi-nal sentence must be proportionate to the crime for which a defendant is convicted).
131. See, e.g., Weems v. United States, 217 U.S. 349, 366 (1910) ("We can now give graphic description of Weems's sentence . . . . No circumstance of degradation is omitted. It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor.").
132. See, e.g., Payne v. Tennessee, 501 U.S. 808, 814-15 (1991) (allowing the jury to consider, in a case in which defendant killed a mother and her daughter, testimony from the victim's mother regarding the words of the vic-tim's three-year-old son who survived the attack: "'He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.'").
133. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 143 (2d Cir. 2007).
134. Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 284 (1977) (citation and internal quotation marks omitted).
135. See Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (ex-plaining that government entities have a limited ability to regulate private speech in public forums).
136. See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 438 (1934) (explaining that legislative action which affects contracts must address a legit-imate end, and the action must be "reasonable and appropriate to that end").
137. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
138. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).
139. Strickland v. Washington, 466 U.S. 668, 688 (1984).
140. See Turner v. Safley, 482 U.S. 78, 89 (1987).
141. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
142. Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).
143. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980).
144. Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (citation and internal quotation marks omitted).
145. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 542 (3d ed. 2006) ("The levels of scrutiny are . . . extremely im-portant in almost all areas involving individual rights and equal protection.").
146. Grutter v. Bollinger, 539 U.S. 306, 318-19 (2003).
147. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
148. 347 U.S. 483 (1954).
149. See Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1593-1609 (1987) (discussing Brown v. Board of Education and empa-thetic understanding).
150. Brown, 347 U.S. at 494.
151. See, e.g., FCC v. Beach Commc'ns., Inc., 508 U.S. 307, 315-16 (1993) ("These restraints on judicial review have added force where the legislature must necessarily engage in a process of line-drawing. Defining the class of persons subject to a regulatory requirement-much like classifying govern-mental beneficiaries-inevitably requires that some persons who have an al-most equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. . . . Congress had to draw the line somewhere . . . ." (internal citations and internal quotation marks omitted));
152. Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) ("Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others." (citations omitted)).
153. 539 U.S. 558, at 578 (2003).
154. Cf. William N. Eskridge, Jr., Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion, 57 FLA. L. REV. 1011, 1031 (2005) (ar-guing that earlier Court rulings on gay issues indicated that the Justices found gay sex to be "disgusting").
155. Lawrence, 539 U.S. at 567.
156. For instance, the shocks-the-conscience test that governs substantive due process violations by executive officials requires judges to understand the official's perspective on the events in question. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 855 (1998) ("While prudence would have repressed the reaction, the officer's instinct was to do his job as a law enforcement officer, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Pru-dence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part."). A judge must also place herself in the shoes of another in order to determine "whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play," which in turn depends on "whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
157. Texas v. Johnson, 491 U.S. 397, 404 (1989) (citations and internal quotation marks omitted).
158. Lee v. Weisman, 505 U.S. 577, 587 (1992).
159. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (citation and internal quotation marks omitted).
160. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).
161. 395 U.S. 444, 447 (1969).
162. 315 U.S. 568, 574 (1942).
163. H.L.A. HART, THE CONCEPT OF LAW 132 (1961) (noting that common law judging is sometimes an indeterminate enter-prise that necessitates "striking a balance, in the light of circumstances, between competing interests");
164. Robert J. Kaczorowski, The Common-Law Back-ground of Nineteenth-Century Tort Law, 51 OHIO ST. L.J. 1127, 1128 (1990) (arguing that "judicial instrumentalism, understood as judges formulating, modifying, and changing legal rules to achieve public policy goals, was charac-teristic of the common law for centuries");
165. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 4 (1943) ("The body of the common law is made up of adjustments or compromises of conflicting individual interests in which we turn to some social interest, frequently under the name of public policy, to determine the limits of a reasonable adjustment.");
166. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 900 (1996) ("Moral judgments-judgments about fairness, good policy, or social utility-have al-ways played a role in the common law, and have generally been recognized as a legitimate part of common law judging.").
167. Thus, Judge Posner, who elevates consequentialism to the center stage of judging, should be a champion of empathic judges. See generally Rich-ard A. Posner, Legal Pragmatism Defended, 71 U. CHI. L. REV. 683 (2004) (ad-vocating legal pragmatism in judicial decision making);
168. Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. CAL. L. REV. 1653, 1670 (1990) ("All that a pragmatic jurisprudence really connotes . . . is a rejection of a con-cept of law as grounded in permanent principles and realized in logical ma-nipulations of those principles, and a determination to use law as an instru-ment for social ends.").
169. See Donald C. Langevoort, Behavioral Theories of Judgment and Deci-sion Making in Legal Scholarship: A Literature Review, 51 VAND. L. REV. 1499, 1499-1500 (1998) ("Nearly all interesting legal issues require accurate predictions about human behavior to be resolved satisfactorily. Judg-es . . . invoke mental models of individual and social behavior whenever they estimate the desirability of alternative rules, policies, or procedures."). Con-sider, as just one example, the law of pretrial detention, which requires a judge to "determine . . . whether the defendant is likely to flee the jurisdiction if released,"
170. United States v. Vasconcellos, 519 F. Supp. 2d 311, 317 (N.D.N.Y. 2007)
171. to predict the future dangerousness of the defendant, see United States v. Salerno, 481 U.S. 739, 746 (1987).
172. See Paul W. Kahn, The Court, the Community and the Judicial Bal-ance: The Jurisprudence of Justice Powell, 97 YALE L.J. 1, 3 & n.14 (1987) (noting that "balancing has emerged as the jurisprudential model at the center of the modern Court's work," so much so that "the word 'balance' or 'balanc-ing' . . . appear[s] in 214 of the 473 cases decided in the last three years [pre-ceding 1987]");
173. R. George Wright, The Role of Intuition in Judicial Decisionmaking, 42 HOUS. L. REV. 1381, 1399 n.104 (2006) (noting that "explic-it balancing tests pervade civil and criminal law, constitutional and otherwise").
174. See George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 949 (1985) ("We lawyers should listen to the way we talk. If we paused to listen to our pattern of speech, we would be surprised by some of its distin-guishing features. One of the most striking particularities of our discourse is its pervasive reliance on the term 'reasonable.' We routinely refer to reasona-ble time, reasonable delay, reasonable reliance, and reasonable care. In crimi-nal law, we talk incessantly of reasonable provocation, reasonable mistake, reasonable force, and reasonable risk.");
175. Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21, 47 (1986) ("Anglo-American law is pervaded by standards that require sim-ilar judgments of degree and reasonableness."). Reasonableness tests infiltrate all areas of our law, from employment law, to tax law, and everything in be-tween.
176. See, e.g., 42 U.S.C. § 12112(b)(5)(A) (2009) (requiring employers to make a "reasonable accommodation" for employee disabilities);
177. Randall S. Thomas & Harwell Wells, Executive Compensation in the Courts, 95 MINN. L. REV. 846, 856 (2011) ("Courts, for instance, have applied a reasonableness test to determine for tax purposes whether executive pay is in part a disguised div-idend to officers/shareholders.").
178. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987) (explaining that for qualified immunity purposes, a right is "clearly established" if "[t]he contours of the right . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right");
179. Smith v. AmSouth Bank, Inc., 892 So.2d 905, 910 (Ala. 2004) ("[T]he question of foreseeability is answered by viewing events from the perspective of the defendant charged with negligence . . . .");
180. Hernandez v. City of Pomona, 207 P.3d 506, 513 (Cal. 2009) (noting that negligence law requires "the trial court . . . [to] specifically conclude[] from the perspective of a reasonable [person] on the scene, taking into account the facts and circumstances confronting them, the [person's] con-duct was objectively reasonable");
181. Schafer v. State, Dep't of Insts., 592 P.2d 493, 495 (Mont. 1979) ("Foreseeability is measured on a scale of reasonable-ness; it is not measured abstractly. . . . [T]he law judges the actor's conduct in the light of the situation as it would have appeared to the reasonable man in his shoes at the time of the act or omission complained of. Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness." (citations and internal quotation marks omitted))
182. overruled in part on other grounds by Estate of Striver v. Cline, 924 P.2d 666 (Mont. 1996).
183. See, e.g., State v. Torres, 495 N.W.2d 678, 682 (Iowa 1993) ("In judging whether this act-sweeping the lamp off the table-was reckless, the district court could not use hindsight. The court had to put itself in Jimmy's shoes at the moment of the act and then determine whether the act was reckless.");
184. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994) ("Determining whether an act or omission involves extreme risk or peril requires an exami-nation of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.").
185. See, e.g., Thornton v. State, 919 A.2d 678, 683 (Md. 2007) ("The requi-site mens rea is measured by an objective standard, i.e., could or should a rea-sonable person, under the circumstances, have foreseen that death would like-ly ensue as a result of his or her conduct.").
186. See, e.g., United States v. Buonocore, 416 F.3d 1124, 1133 (10th Cir. 2005) ("[T]his inquiry is entirely subjective, the inquiry is not to be viewed from the perspective of a hypothetical reasonable person, and the mens rea el-ement is not satisfied if Defendant acted through mistake, negligence, care-lessness, or belief in an inaccurate proposition.").
187. State v. Walker, 966 P.2d 883, 885 (Wash. 1998) (en banc).
188. Brown v. United States, 256 U.S. 335, 343 (1921);
189. see also, e.g., People v. Desmond, 93 A.D.2d 822, 823 (N.Y. App. Div. 1983).
190. Similarly, the provocation defense typically allows mitigation of mur-der charges "if the defendant . . . was actually provoked into a heat of passion and a reasonable person in the defendant's shoes would also have been pro-voked." CYNTHIA LEE, MURDER AND THE REASONABLE MAN 7 (2003). The Mod-el Penal Code replaces this test with one that "permits mitigation if the de-fendant was suffering from an extreme mental or emotional disturbance for which a reasonable explanation or excuse exists."
191. See, e.g., State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) (recog-nizing the value of battered women syndrome evidence to dispel common mis-conceptions, bolster the woman's credibility, and establish the reasonableness of her fear of bodily harm).
192. State v. Daws, 662 N.E.2d 805, 811 (Ohio Ct. App. 1994).
193. State v. Kelly, 478 A.2d 364, 372 (N.J. 1984).
194. Judith S. Wallerstein & Tony J. Tanke, To Move or Not to Move: Psy-chological and Legal Considerations in the Relocation of Children Following Divorce, 30 FAM. L.Q. 305, 307 (1996);
195. see, e.g., In re Leo M., 24 Cal. Rptr. 2d 253, 259 (1993) (noting that the judge must "explore the minor's feelings re-garding his/her biological
196. See, e.g., Connell v. Steel Haulers, Inc., 455 F.2d 688, 691 (8th Cir. 1972) (noting that calculating mental anguish damages requires empathy).
197. Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
198. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987).
199. See, e.g., 11 U.S.C. § 523(a)(8) (2006) (imposing an undue hardship test for the discharge of educational loans in bankruptcy);
200. 42 U.S.C. § 2000(e)(j) (employing an undue hardship test in religious accommodation);
201. FED. R. CIV. P. 26(b)(3)(A)(ii) (imposing an undue hardship test in civil discovery).
202. See, e.g., In re Fahrer, 308 B.R. 27, 36 (Bankr. W.D. Mo. 2004) ("An-other factor which this Court may take into consideration in determining whether repayment would constitute an undue hardship is the psychological and emotional impact of the Debtor's continuing liability for the repayment of such a large sum of money over such an extended period of time.").
203. See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (declaring that courts must "balance the family's privacy interest against the public interest in disclosure" when applying the FOIA provision that bans disclosure of law enforcement records when disclosure would amount to "an unwarranted invasion . . . of personal privacy").
204. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (identifying humiliating nature of discriminatory conduct as a relevant factor).
205. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
206. Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997).
207. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (internal quotation marks omitted).
208. See, e.g., Alvarado v. Fed. Express Corp., 384 Fed. App'x 585, 589 (9th Cir. 2010) ("The unwelcome 'chest to breast' hugs made Boswell feel embar-rassed and humiliated, and the jury could conclude that a reasonable woman in Boswell's position would have felt the same way.");
209. United States v. Dowd, 417 F.3d 1080, 1088 (9th Cir. 2005) (noting that many courts have held "that harassment should be analyzed from the perspective of the victim, taking into account the gender of the plaintiff alleging a hostile work environment").
210. See ANTHONY T. KRONMAN, THE LOST LAWYER 326 (1993) (arguing that adjudicative decision making requires "the capacity to entertain a point of view defined by interests, attitudes, and values different from one's own with-out actually endorsing it");
211. Benjamin Zipursky, Note, DeShaney and the Ju-risprudence of Compassion, 65 N.Y.U. L. REV. 1101, 1103, 1135-37 (1990) (ar-guing that "certain concepts can only be fully understood from a perspective that includes empathy and compassion" and "[b]ecause some of those concepts are embedded in the law, interpretation of the law requires compassion").
212. See Elyse Pepper, The Case for "Thinking like a Filmmaker": Using Lars von Trier's Dogville as a Model for Writing a Statement of Facts, 14 LE-GAL WRITING 171, 171-73 (2008) (arguing that the best advocacy uses a movie-like narrative);
213. Steven L. Winter, The Cognitive Dimension of the Agon be-tween Legal Power and Narrative Meaning, 87 MICH. L. REV. 2225, 2272 (1989) (arguing that a good narrative creates a persuasive effect);
214. See Mary Becker, The Passions of Battered Women: Cognitive Links Between Passion, Empathy, and Power, 8 WM. & MARY J. WOMEN & L. 1, 2 (2001) ("Empathy plays crucial roles in both shaping law and affecting out-comes in litigation. . . . The ability or inability to empathize with someone is often the basis for either recognition or denial of a tort action to redress an in-jury or of a defense in such an action. Similar points could be made about all areas of law and hold whether the law is made by judges or by legislators.").
215. Suzanna Sherry, Foundational Facts and Doctrinal Change, 2011 U. ILL. L. REV. 145, 146. "Foundational facts are the background facts that are not explicitly at issue in any particular case; they are the meta-facts on which the doctrine itself depends."
216. To take just one example, the Supreme Court has based its decisions to create, and then expand, the good faith exception to the Fourth Amend-ment's exclusionary rule on predictions about how police officers (and other actors in the criminal justice system) would likely behave. See Arizona v. Ev-ans, 514 U.S. 1, 15 (1995) ("[T]here is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions. The threat of ex-clusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed.");
217. United States v. Leon, 468 U.S. 897, 918 (1984) ("If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments.").
218. Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 HARV. L. REV. 56, 77-78 (1997) (discussing the role of balancing in "the process by which the Court crafts doctrine in the first instance");
219. Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CALIF. L. REV. 935, 942 (1968) (coining the term "definitional" balancing).
220. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (footnotes omitted).
221. But see Unit-ed States v. Stevens, 130 S. Ct. 1577, 1585-86 (2010) (suggesting, implausibly, that the excluded categories are determined by history rather than balancing).
222. See, e.g., Miller v. California, 413 U.S. 15 (1973) (liberalizing the defi-nition of obscenity in order to ensure that serious literary, artistic, political, and scientific speech is not censored);
223. Cohen v. California, 403 U.S. 15, 25-26 (1971) (declining to treat profanity as an excluded category because many speakers find lyrical beauty in words that others find offensive, and because often profanity is essential to fully convey one's emotions). Empathy for speak-ers is also evinced by the fact that much of the Court's free speech jurispru-dence-including, for instance, the overbreadth doctrine-has been based on the Court's evaluation of whether potential speakers would be chilled from speaking out of fear of liability.
224. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 497 n.5 (2007) (Scalia, J., concurring in part and concurring in the judg-ment) ("Our normal practice is to assess ex ante the risk that a standard will have an impermissible chilling effect on First Amendment protected speech."). This inquiry involves placing oneself in the shoes of the speaker and predict-ing how he would likely behave.
225. See, e.g., Virginia v. Hicks, 539 U.S. 113, 119 (2003) ("We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech-especially when the overbroad statute imposes criminal sanctions. Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech . . . ." (citations omitted)).
226. See, e.g., New York v. Ferber, 458 U.S. 747, 758-59 & n.10 (1982) (adding child pornography to the list of excluded categories because "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child," in that a "child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography" and "the fear of exposure and the tension of keeping the act secret . . . have . . . profound emotional re-percussions" (citations and internal quotation marks omitted));
227. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (limiting First Amendment protection for defamation of private figures because of the state interest in "the compensa-tion of individuals for the harm inflicted on them by defamatory falsehood," an interest that "reflects no more than our basic concept of the essential dignity and worth of every human being" (citations and internal quotation marks omitted)).
228. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (citation and internal quotation marks omitted).
229. United States v. Nixon, 418 U.S. 683, 712 (1974).
230. For detailed exploration, see Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 COLUM. L. REV. 529 (2008)
231. Thomas B. Colby, The Sacrifice of the New Originalism, 99 GEO. L.J. 713 (2011) [hereinafter New Originalism].
232. See, e.g., KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 8 (1999) ("Traditional tools of interpretive analysis can be exhausted without providing a constitutional meaning that is sufficiently clear to guide government action. The text may specify a principle that is itself identifiable but is nonetheless indeterminate in its application to a particular situation. . . . Alternatively, the principle es-tablished by the text may be unclear . . . .") (footnote omitted).
233. Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 645 (1999).
234. Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 109-10 (2001).
235. See ADAM SMITH, THE THEORY OF MORAL SENTIMENTS ¶ I.i.4.7 (Ox-ford Press 1976) ("Mankind, though naturally sympathetic, never conceive, for what has befallen another, that degree of passion which naturally animates the person principally concerned. . . . [T]he thought that they themselves are not really the sufferers, continually intrudes itself upon them; and though it does not hinder them from conceiving a passion somewhat analogous to what is felt by the sufferer, hinders them from conceiving any thing that approaches to the same degree of violence.").
236. See MARK H. DAVIS, EMPATHY: A SOCIAL PSYCHOLOGICAL APPROACH 46-61 (1996) (arguing for individual psychological profiles concerning empa-thy);
237. TANIA SINGER & ERNST FEHR, THE NEUROECONOMICS OF MIND READING AND EMPATHY 9 (2005) (recounting studies that suggest "that there are individual differences in empathic abilities");
238. Mark A. Barnett, Empathy and Related Responses in Children, in EMPATHY AND ITS DEVELOPMENT, supra note 53, at 146, 149 (dis-cussing scientific "evidence that young children can differ markedly in their capacity or willingness to be sensitive and responsive to the feelings of oth-ers");
239. Janet Strayer and Nancy Eisenberg, Empathy Viewed in Context, in EM-PATHY AND ITS DEVELOPMENT, supra note 53, at 389, 396 (noting that the ca-pacity for empathy may vary across individuals).
240. Tom F.D. Farrow, Neuroimaging of Empathy, in EMPATHY IN MENTAL ILLNESS 201, 201-17 (Tom F.D. Farrow & Peter W.R. Woodruff eds., 2007) (illustrating the neuro-imaging of empathy).
241. MARTIN L. HOFFMAN, EMPATHY AND MORAL DEVELOPMENT: IMPLICATIONS FOR CARING AND JUSTICE 282 (2000) (noting that empathy "can be destroyed by power-assertive childrearing, diminished by cultural valuing of competition over helping others, and overwhelmed by egoistic motives within the individu-al . . . .");
242. See generally ARNOLD P. GOLDSTEIN & GERALD Y. MICHAELS, EMPATHY: DEVELOPMENT, TRAINING, AND CONSEQUENCES 12-61 (1985) (discussing the development of empathy).
243. Martin L. Hoffman, The Contribution of Empathy to Justice and Moral Judgment, in EMPATHY AND ITS DEVELOPMENT, supra note 53, at 47, 69 (arguing that moral education can overcome empathic biases). This is an area in which more empirical studies are needed.
244. Lisa M. Brown et al., Affective Reactions to Pictures of Ingroup and Outgroup Members, 71 BIOLOGICAL PSYCH. 303-311 (2006) (presenting results of study that found that people empathize more with members of their own ethnic group);
245. Tania Singer et al., Empathic Neural Responses are Modulated by the Perceived Fairness of Others, 439 NATURE 466, 466 (2006) (noting that neural studies show that, sometimes, people em-pathize more with persons whom they like than with persons whom they dis-like);
246. See Christina L. Boyd et al., Untangling the Causal Effects of Sex on Judging, 54 AM. JUR. POL. SCI. 389, 390 (2010).
247. See Adam Glynn & Maya Sen, Like Daughter, Like Judge: How Having Daughters Affect Judges' Voting on Women's Issues 28 (Mar. 10, 2011) (working paper), available at http://scholar.harvard.edu/msen/files/judicialdaughters. pdf.
248. Although this Article does not focus on such a claim, it is worth noting that there appears to be a "general consensus among scholars in various fields who have studied emotion" that "reasoning has an emotive aspect." Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 366 (1996);
249. see also Terry A. Maroney, The Persistent Cultural Script of Judicial Dispassion, 99 CALIF. L. REV. 629, 645-48 (2011). "It is [therefore] incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the process we use to assign value to different possibilities."
250. David Brooks, Op-Ed., The Empathy Issue, N.Y. TIMES, May 29, 2009, at A25. If this is true-that all reasoning, including legal reasoning, necessarily has an emotional component-then empathy is all the more important to good judg-ing. If a judge cannot help but base her rulings at least in part on her emo-tional view of the case, then it is essential that she comprehend and feel the emotional perspective of all of the parties, rather than just the ones with whom she feels a natural affinity.
251. Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 410 (1983) ("The real threat that a judge's personal ide-ologies may affect his decisions in an inappropriate case arises when the judge is not even consciously aware of the potential threat.");
252. Cheryl L. Wade, When Judges Are Gatekeepers: Democracy, Mo-rality, Statu, and Empathy in Duty Decisions (Help from Ordinary Citizens), 80 MARQ. L. REV. 1, 49 (1996) (noting that, if judges fail to empathize with all parties, their decisions will tend to reflect the values of the segments of society from which they themselves have been drawn);
253. Jeffrey Toobin, No More Mr. Nice Guy, NEW YORKER (May 25, 2009), http://www.newyorker.com/reporting/2009/05/25/090525fa-fact-toobin.
254. For a similar charge against Justice Alito, see Emily Bazelon, Myste-rious Justice, N.Y. TIMES, March 20, 2011, at MM13. Bazelon cites instances of Alito's opinions evincing empathy for military families and white men, but argues that "Alito's sense of empathy never seems to involve an act of imagi-nation; it rarely extends to people who are not like him."
255. 505 U.S. 577 (1992).
256. Weisman, 505 U.S. at 646 (Scalia, J., dissenting).
257. Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 NW. U. L. REV. 1097, 1120 (2006).
258. Weisman, 505 U.S. at 645-46 (Scalia, J., dissenting) (recounting "the personal interests on the other side").
259. McCreary County v. ACLU, 545 U.S. 844, 900 (2005) (Scalia, J., dissenting).
260. 499 U.S. 621, 623 n.1 (1991).
261. Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 CORNELL L. REV. 723, 748 n.110 (1992).
262. see also DAVID H. BAYLEY & HAROLD MENDELSOHN, MINORITIES AND THE POLICE: CONFRONTATION IN AMERICA 120 (1969) ("Our data have shown that minority people carry into contacts with the police more negative expectations than do [whites]. One important result of these attitudes is the generation of a strong disposition to avoid the police.");
263. Tracey Maclin, "Black and Blue Encounters" Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243, 276 (1991).
264. Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U. ILL. L. REV. 147, 148.
265. Sympathy might play a legitimate role in criminal sentencing. See Garner v. Jones, 529 U.S. 244, 258 (2000) (Scalia, J., concurring in part in the judgment) ("Discretion to be compassionate or harsh is inherent in the sen-tencing scheme . . . .").
266. See, e.g., DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 202-03 (1989) (noting that judges "are moved by natural sympathy in a case like this to find a way" for the aggrieved party to be compensated, yet they are compelled to follow the law);
267. cf. Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J., concurring) ("The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.").
268. H. Jefferson Powell, On Not Being "Not an Originalist," 7 U. ST. THOMAS L.J. 259, 280 (2010).
269. Mark Tushnet, Themes in War-ren Court Biographies, 70 N.Y.U. L. REV. 748, 755-56 (1995) (describing an anecdote about Justice Abe Fortas who drafted an opinion consisting of un-supported policy conclusions and then told his law clerk to "[d]ecorate it" with citations to legal authorities and suggesting that Fortas had been influenced by "the Yale legal realists who were his mentors and friends" to believe that "invocations of 'the law' were merely facades for policy preferences" and thus that, "[a]s a judge, . . . he had no need to work through what the law required before he arrived at a judgment")
270. citing LAURA KALMAN, ABE FORTAS: A BI-OGRAPHY 18, 271-72, 274 (1990);
271. cf. Tim Wells, Legends in the Law: A Con-versation with Peter B. Edelman, WASH. LAW., Apr. 2008, at 29, 31 (recounting the recollection of a former law clerk that Justice Arthur J. Goldberg's "first question in approaching a case always was, 'What is the just result?' Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent").
272. Catherine Gage O'Grady, Empathy and Perspective in Judging: The Honorable William C. Canby, Jr., 33 ARIZ. ST. L.J. 4, 10 (2001) ("Although empathy is sometimes used interchangeably with compassion, sympathy, and pity, empathy as a component of judicial decisionmaking does not mean experiencing sympathy or pity for another and allowing that sympathy to shape an outcome.");
273. Sophie H. Pirie, John T. Noonan as Judge: What Can Empathic Judging Mean for Wom-en?, 12 J.L. & RELIGION 541, 544 (1996).
274. 151 CONG. REC. S10,366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama).
275. See Interview with President Barack H. Obama (C-SPAN broadcast May 23, 2009), available at http://www.c-span.org/pdf/obamainterview.pdf ("I said earlier . . . that I thought empathy was an important quality and I con-tinue to believe that. You have to have not only the intellect to be able to effec-tively apply the law to cases before you. But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.");
276. See MARTHA C. NUSSBAUM, POETIC JUSTICE 86-90 (1995) (arguing that judges must apply neutral principles and be nonpartisan, but at the same time they must "develop as rich and comprehensive an understanding as pos-sible of the situation of the groups involved in the case");
277. Jerome Frank, Corbin on Contracts Volume Three, 61 YALE L.J. 1108, 1112 (1952) (book re-view) ("[T]he judicial judge . . . should be . . . quick with empathy, the capacity to feel himself into the minds and moods of other men.") (paraphrasing Arthur Corbin);
278. Thomas Morawetz, Empathy and Judgment, 8 YALE J.L. & HUMAN. 517, 523 (1996) (noting that empathy is a "second-order emotion[]"-a "mode[] of being in touch with the emotions, feelings, expectations, and vulnerabilities of others": "What we expect from judges is not the experience of first-order emotions-such as fear, love, anger, distress-but the capacity to make moral-ly significant decisions in the light of empathy with the first-order emotions of others.");
279. Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 102d Cong. 260 (1991) (testimony of Judge Thomas);
280. see also JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 104-05 (2007) ("Being an RVer helps me do my job better. . . . The world I live in is very clois-tered. The bulk of my adult life has been spent in Washington, D.C. RVing al-lows me to get out and see the real America." (quoting Justice Thomas's re-marks to the Recreational Vehicle Industry Association in 2004)).
281. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 109th Cong. 333 (2006) (testimony of Judge Alito).
282. cf. David Limbaugh, Sotomayor, Reverse Empa-thy and the Rule of Law, TOWNHALL (May 27, 2009 http://townhall.com/columnists/davidlimbaugh/2009/05/27/ sotomayor,-reverse-empathy-and-the- rule-of-law/page/full/ (paraphrasing President Obama: "Forget what I just said about how judges should interpret, not make, the law. I want my judges to have empathy. And don't tell anyone, but when I say 'empathy,' that's code for bending the law to achieve the results I want based on the selective empa-thy I have for certain victimized groups.").
283. See, e.g., Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider Views of the Legal Profession, 21 HARV. J.L. & PUB. POL'Y 835, 839 (1998) (noting that many judges come from privi-leged backgrounds and attended elite schools);
284. Susan Haire et al., An Intercircuit Profile of Judges on the U.S. Court of Appeals, 78 JUDICATURE 101, 102-03 (1994) (providing data that show that a high percentage of federal appellate judges have prior prosecutorial experience and attended elite law schools);
285. Rorie L. Spill Solberg & Kathleen A. Bratton, Diversifying the Feder-al Bench: Presidential Patterns, 26 JUST. SYS. J. 119, 124-25 (2005) (providing data that show that more than a third of federal district judges attended Top-15 law schools and close to half of federal district judges have prior prosecuto-rial experience, whereas only a tiny percentage have worked in legal aid, civil rights, or civil liberties organizations).
286. See, e.g., Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASH. & LEE L. REV. 405, 411 (2000) ("[D]iversity on the bench . . . encourages judicial impartiality, by ensuring that a single set of values or views do not dominate judicial decision-making.");
287. Angela Onwuachi-Willig, Representative Government, Representative Court? The Supreme Court as a Representative Body, 90 MINN. L. REV. 1252, 1253 (2006) (arguing that, because it is "inevitable that judges' different profession-al and life experiences have some bearing on how they confront various prob-lems that come before them," it is "important . . . that courts . . . are comprised of individuals who represent a cross section of the country" (internal quotation marks omitted)).
288. See, e.g., Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 CALIF. L. REV. 61 (1996).
289. Sonia Sotomayor, A Latina Judge's Voice, 13 BERKELEY LA RAZA L.J. 87, 92 (2002).
290. Cf. Sylvia R. Lazos Vargas, Does a Diverse Judiciary Attain a Rule of Law That Is Inclusive?: What Grutter v. Bollinger Has to Say About Diversity on the Bench, 10 MICH. J. RACE & L. 101, 145-46 (2004)
291. drawing upon the reasoning of Grutter v. Bollinger, 539 U.S. 306 (2003), to argue that appointing a "critical mass" of minority judges will generate meaningful dialogue on the bench and will improve decision making because minority judges will inform their colleagues "when positive or negative racial dynamics may be impacting a legal issue in a way that is not readily discernible to a majority judge".
292. See, e.g., DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 269 (2000) (quoting Justice O'Connor's statement that Justice Marshall's recounting his experiences was important to her because she had "no personal sense of being a minority in a society that cared primari-ly for the majority");
293. MARK V. TUSHNET, MAKING CONSTITUTIONAL LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1961-1991, at 5 (1997) (re-counting Justice O'Connor's belief that Justice Marshall "made clear . . . the impact of legal rules on human lives");
294. William J. Brennan, Jr., A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 23, 31 (1991) (claiming that Justice Marshall's stories were "a form of education for the rest of us. Surely Justice Marshall recognized that the stories made us-his colleagues-confront walks of life we had never known.");
295. Byron R. White, A Tribute to Justice Thurgood Marshall, 44 STAN. L. REV. 1215, 1216 (1992) ("Thurgood brought to the conference table years of experience in an area that was of vital importance to our work, experience that none of us could claim to match . . . . [H]e told us much that we did not know due to the limitations of our own experience.").
296. See JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 414 (1973) (arguing that judges must recognize their own prejudices and biases in order to nullify their effect);
297. Amy L. Wax, Discrimination as Accident, 74 IND. L.J. 1129, 1166 (1999) (noting that "some legal commentators have suggested that the adoption of simple or commonsense mental devices, such as engaging in introspective self-criticism or attempting to feel empathy for people who are 'different,' will go a long way towards banishing cognitive bias from persons' thinking").
298. Transcript of Oral Argument, Safford Unified Sch. Dist. No. 1 v. Red-ding, 129 S. Ct. 2633 (2009) (No. 08-479)
299. 2009 WL 1064200 at *48-49.
300. Safford Unified Sch. Dist. No. 1, 129 S. Ct. at 2639, 2641-42. Justice Thomas, by contrast, asked no questions at oral argument, and authored a dissent that repeatedly empathizes with the difficult position in which the school administrators were placed, but utterly fails to acknowledge the embar-rassment visited upon the student.
301. But cf. GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND CON-SERVATIVES THINK 32-36 (2002) (suggesting that the liberal moral value sys-tem differs from the conservative one in that, to liberals, morality is heavily correlated with empathy).
302. This charge has, for instance, been leveled against Justice Brennan, who once explained, "What got me interested in people's rights and liberties was the kind of family and the kind of neighborhood I was brought up in. I saw all kinds of suffering-people had to struggle." Nat Hentoff, The Constitu-tionalist, NEW YORKER, Mar. 12, 1990, at 45, 46. As a child, Brennan "learned to sympathize with the underdog."
303. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 21 (2010). In law school, he served on the Legal Aid Bureau, where he "was exposed . . . to . . . the plight of the poor" and came to empathically understand how the problems of the poor "'can assume terrify-ing proportions for the people concerned.'"
304. Morton J. Horwitz, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 23, 24 (1997). But others have argued that, "when we say Brennan was empa-thetic, we mean he was empathetic to certain groups for which we feel empa-thy. The other justices may also be empathetic, but to groups that we do not readily notice or do not sympathize with."
305. Robert Nagel, Will the Brennan Legacy Endure?, 43 N.Y.L. SCH. L. REV. 177, 193 (1999) (providing the re-marks of Robert Nagel). These critics charge, in other words, that Justice Brennan routinely empathized only with the sympathetic underdog.
306. Cf. Frank I. Michelman, Super Liberal Romance, Community, and Tradition in William J. Brennan, Jr.'s Constitutional Thought, 77 VA. L. REV. 1261, 1279-80 (1991) (noting Justice Brennan's "relative coldness toward managerial and bureau-cratic interests in order, calculation, and control," observing that, "[i]n a dizzy-ing succession of doctrinal contexts . . . Justice Brennan has been the Court's predictable anchor against allowing governments and their officials to fend off liability," and suggesting that "this whole pack of opinions impliedly demurs to pleas that liability impairs governmental efficiency, deters governmental ap-plication, or, by rendering life in office unruly and uncomfortable, hinders the government's ability to attract the best talent to public service").
307. See Snyder v. Phelps, 131 S. Ct. 1207, 1222-29 (2011) (Alito, J., dis-senting);
308. United States v. Stevens, 130 S. Ct. 1577, 1592-1602 (2010) (Alito, J., dissenting).
309. Snyder, 131 S. Ct. at 1222 (Alito, J., dissenting).
310. Stevens, 130 S. Ct. at 1598-1602 (Alito, J., dissenting).
311. Mike Dorf, Could Empathy Explain Justice Alito's Lone Dissents in Free Speech Cases, DORF ON LAW (Mar. 7, 2011, 12:22 AM), http://www .dorfonlaw.org/2011/03/could-empathy-explain-justice-alitos.html.
312. See C. Daniel Batson et al., Immorality from Empathy-Induced Altru-ism: When Compassion and Justice Conflict, 68 J. PERSONALITY & SOC. PSYCH. 1042-54 (1995).
313. Economists sometimes worry that policymakers overemphasize the immediate and obvious costs and benefits of their decisions-the "seen" ef-fects-and underemphasize the remote and less obvious costs and benefits-the "unseen" effects. For instance, it is easy to appreciate the benefits to low income earners of raising the minimum wage, but harder to appreciate the potential costs to persons whose jobs might be lost or never created, or to con-sumers who might end up paying higher prices to offset increased labor costs. Cf. Frédéric Bastiat, What Is Seen and What Is Not Seen, LIBRARY ECON. & LIBERTY, http://www.econlib.org/library/Bastiat/basEss1.html (last visited May 2, 2012) ("In the economic sphere . . . a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; . . . it is seen. The other effects emerge only subsequently; they are not seen. . . . There is only one difference between a bad economist and a good one: the bad economist con-fines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."). By the same token, it is important for empathic judges to avoid empathizing only with those whose plight is most obvious or apparent.
314. Rand J. Gruen & Gerald Mendelsohn, Emotional Responses to Affec-tive Displays in Others: The Distinction Between Empathy and Sympathy, 51 J. PERSONALITY & SOC. PSYCH. 609, 613 (1986). Empathy for those in distress can sometimes produce sympathy (concern for and a desire to help the suffer-er), but it can also produce what psychiatrists call "personal distress"-a self-oriented sense of personal discomfort.
315. See N. Eisenberg & R.A. Fabes, Empa-thy: Conceptualization, Measurement, and Relation to Prosocial Behavior, 14 MOTIVATION & EMOTION 131, 131-49 (1990).
316. Jesse J. Printz, Is Empathy Necessary for Morality?, in EMPATHY: PHILOSOPHICAL AND PSYCHOLOGICAL PERSPECTIVES (P. Goldie & A. Coplan eds.) (forthcoming) (manuscript at 1, 8). Studies show no correlation between empathy and prosocial behavior in children; some studies actually show nega-tive correlation. See id. Studies involving adults show only modest correlation.
317. Compare Harvey Ginsburg & Tammy Silakowski, Comparing Empathy and Selfish Rationales Motivating Preschool Children's Decisions About Wear-ing Vision-Obscuring Opaque Eyeglasses, 3 J. EDUC. & HUMAN DEV. 1 (2009) (finding a link between sympathy and altruism)
318. Christopher J. Einolf, Empathic Concern and Prosocial Behaviors: A Test of Experimental Results Using Survey Data, 34 SOC. SCI. RES. 1267-79 (2008) (concluding that people who are inherently more sympathetic are generally not more likely to engage in prosocial behavior).
319. Sacha Baron-Cohen's performances as the bumbling Borat depend on a masterful empathic ability to understand the uncomfortable feelings that his outrageous behavior causes in those around him, but he mercilessly takes no action to quell their misery. See BORAT: CULTURAL LEARNINGS OF AMERICA FOR MAKE BENEFIT GLORIOUS NATION OF KAZAKHSTAN (20th Century Fox 2006);
320. DA ALI G SHOW (HBO tele-vision broadcast 2003-04).
321. 155 CONG. REC. S8,780 (Aug. 4, 2009) (statement of Sen. Grassley).