Posted by Orin Kerr:
Legal Ambiguity, Empathy, and the Role of Judicial Power:
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242251518
President Obama wants a Supreme Court nominee with "empathy." But what
exactly does that mean? To answer that question, I think we need to
recognize the important but usually overlooked differences in how
different people understand the role of ambiguity in judicial
decisionmaking. Some people see legal ambiguity as a cause for careful
judicial weighing; others see legal ambiguity as a trigger for
judicial empowerment. I think those differences explain a lot about
contemporary legal debates, including, I suspect, President Obama's
view of the Supreme Court and the role of "empathy."
First, some background. It is a truism that some legal cases are
easy and other legal cases are hard. What we mean by that is that
there is a sliding scale between cases where the relevant legal
materials point to an absolute answer and cases where there is a
tougher call to make. Many cases are easy: the legally correct answer
is 100% clear. But other cases get a little trickier. Sometimes there
is at least a facially plausible argument for the weaker side. There
's a stronger side and a weaker side, but the issue isn't 100% clear;
You might call the balance 90%/10%. instead. And sometimes the case is
pretty tough, with an honest and careful survey of the legally
relevant materials making for a just slightly stronger case on one
side and a just slightly weaker case on the other. You might call that
balance 55/45. And then there are some cases for which the legally
relevant materials are in exact equipoise: The balance is exactly at
50/50, with no side being stronger than the other.
I think there are two different ways to deal with this kind of legal
ambiguity. One approach is to see legal ambiguity as cause for
judicial weighing. This view sees the role of the judge as narrow. The
judge must weigh the best legal arguments on one side and the best
legal arguments for the other, and must pick the side that has the
better of it, no matter how slight the advantage. If a case is 55/45,
them there is a correct answer, because 55 is greater than 45. The
position with the greater support in the legally relevant materials
wins. Of courser, there may in fact be cases that are genuinely
50.000/50.000, and in those cases, perhaps the judge can pick the
side. But those cases are very rare: Even in the hard cases, there is
usually one side that emerges as slightly stronger than the other.
That's one approach, at least. The other approach is to see legal
ambiguity as cause for judicial empowerment. This view sees the judge
as dutifully following the law when the law is clear. But as soon as
there is some ambiguity, and the law is unclear, then the judge is
free to decide the case however he wants. You don't wait for a case to
be truly 50/50 for this. So long as there is some appreciable legal
ambiguity, there is no clear "correct" answer. Maybe 70/30 is enough,
or maybe even 75/25 will do. Either way, the lack of a "correct"
answer means that the judge can rule in a way that furthers whatever
normative vision of the law that the judge happens to like.
I think this difference explains President Obama's view of
"empathy," as well as why many people see it as a very odd label for a
judicial nominee. Everything he has said about the Supreme Court
suggests to me that President Obama is in the latter camp: He sees
legal ambiguity as a cause for judicial empowerment. He believes that
when there is legal ambiguity, a judge is then free to make the
decision he wants. From that perspective, the key issue becomes how a
judge decides to exercise his or her discretion within the zone of
ambiguity. Here's what Obama said when [1]he announced his vote
against John Roberts:
[W]hile adherence to legal precedent and rules of statutory or
constitutional construction will dispose of 95 percent of the cases
that come before a court, so that both a Scalia and a Ginsburg will
arrive at the same place most of the time on those 95 percent of
the cases -- what matters on the Supreme Court is those 5 percent
of cases that are truly difficult. In those cases, adherence to
precedent and rules of construction and interpretation will only
get you through the 25th mile of the marathon. That last mile can
only be determined on the basis of one's deepest values, one's core
concerns, one's broader perspectives on how the world works, and
the depth and breadth of one's empathy.
In those 5 percent of hard cases, the constitutional text will
not be directly on point. The language of the statute will not be
perfectly clear. Legal process alone will not lead you to a rule of
decision. In those circumstances, your decisions about whether
affirmative action is an appropriate response to the history of
discrimination in this country or whether a general right of
privacy encompasses a more specific right of women to control their
reproductive decisions or whether the commerce clause empowers
Congress to speak on those issues of broad national concern that
may be only tangentially related to what is easily defined as
interstate commerce, whether a person who is disabled has the right
to be accommodated so they can work alongside those who are
nondisabled -- in those difficult cases, the critical ingredient is
supplied by what is in the judge's heart.
(emphasis added)
Put another way, Obama seems to believe that close cases let judges
pick a side, so the big question is how a judge will go about picking
a side in the close cases. This view of the judicial power isn't
necessarily conservative or liberal; it is very much the view of
Richard Posner, who envisions that position as a "realist" and
"pragmatist" view. Whether or not those labels are accurate, that
vision of legal ambiguity does tend to be judge-empowering: The judge
presented with a close case doesn't need to read more cases, or read
the briefs again. Rather, he can and should pick the side by looking
in his heart.
I think this explains Obama's view of "empathy." Obama sees empathy
as critical because he thinks that judges in close cases have a free
choice as to which side should win. A substantial number of the close
cases that reach the Supreme Court involve some sort of power dynamic
-- employer versus employee, plaintiff versus big company -- and Obama
wants the judge who will pick the side of the powerless. Recall what
Obama [2]said when he voted against the confirmation of Samuel Alito.
He couldn't vote for Alito, Obama said, because Alito
consistently sides on behalf of the powerful against the powerless;
on behalf of a strong government or corporation against upholding
American's individual rights. If there is a case involving an
employer and an employee and the Supreme Court has not given clear
direction, he'll rule in favor of the employer. If there's a claim
between prosecutors and defendants, if the Supreme Court has not
provided a clear rule of decision, then he'll rule in favor of the
state.
In other words, Obama saw Alito as exercising his discretion to pick a
side the wrong way.
What makes the issue interesting, I think, is that the broad divide
over the role of ambiguity in legal decisionmaking is quite real, and
yet not often explicitly drawn out. But to those who take the first
approach to legal ambiguity, Obama's view of empathy is just asking
for a judge who is lawless. From that perspective, Obama wants a judge
who will ignore the law: He wants a judge who might look at the
precedents and text, weigh the merits as 70/30, and then vote for the
weaker "30" side only because that furthers his political agenda. To
those who see legal ambiguity as inviting a careful judicial weighing
-- indeed, who think that the critical role of a judge is to engage in
that careful judicial weighing -- emphasizing the need for "empathy"
is an invitation to replace law with politics.
References
1.
http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm
2.
http://obamaspeeches.com/046-Confirmation-of-Judge-Samuel-Alito-Jr-Obama-Speech.htm
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