Empathy Versus Law
This was sent to me via email. I don't care if it turns out to be made up or not, it still rings 100% true. Of course it caught my eye because of the Steelers, but again, it all rings true and shows a major problem with how a potential Supreme Court Justice will be nominated.
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President Obama's articulated criteria for his nominee to the U.S.
Supreme Court is: "We need somebody who's got the heart to recognize -
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."
What is the role of a U.S. Supreme Court justice? A reasonable start for
an answer is the recognition that our Constitution represents the rules
of the game. A Supreme Court justice has one job and one job only
namely; he is a referee. There is nothing complicated about this. A
referee's job, whether he is a football referee or a Supreme Court
justice, is to know the rules of the game and make sure that they are
evenly applied without bias. Do we want referees to allow empathy to
influence their decisions? Let's look at it using this year's Super Bowl
as an example.
The Pittsburgh Steelers have won six Super Bowl titles, seven AFC
championships and hosted 10 conference games. No other AFC or NFC team
can match this record. By contrast, the Arizona Cardinals' last
championship victory was in 1947 when they were based in Chicago. In
anyone's book, this is a gross disparity. Should the referees have the
empathy to understand what it's like to be a perennial loser and what
would you think of a referee whose decisions were guided by his empathy?
Suppose a referee, in the name of compensatory justice, stringently
applied pass interference or roughing the passer violations against the
Steelers and less stringently against the Cardinals. Or, would you
support a referee who refused to make offensive pass interference calls
because he thought it was a silly rule? You'd probably remind him that
the league makes the rules, not referees.
I'm betting that most people would agree that football justice requires
that referees apply the rules blindly and independent of the records or
any other characteristic of the two teams.
Moreover, I believe that most people would agree that referees should
evenly apply the rules of the games even if they personally disagreed
with some of the rules.
The relationship between Supreme Court justices and the U.S.
Constitution should be identical to that of referees and football rules.
The status of a person appearing before the court should have absolutely
nothing to do with the rendering of decisions. That's why Lady Justice,
often appearing on court buildings, is shown wearing a blindfold. It is
to indicate that justice should be meted out impartially, regardless of
identity, power or weakness. Also, as Justice Oliver Wendell Holmes
said, "Men should know the rules by which the game is played. Doubt as
to the value of some of those rules is no sufficient reason why they
should not be followed by the courts." The legislative branch makes the
rules, not judges.
Interventionists often make their case for bending the rules based on
the unfairness of outcomes such as differences in income, education and
wealth. After all, how can the game of life possibly be fair when some
people's yearly income totals in the hundreds of thousands, even
millions of dollars, while many others scarcely earn twenty or thirty
thousand dollars? Some people find that argument persuasive but it's
nonsense. Income distribution is an outcome and fairness cannot be
determined by outcomes. It's the same with football. The Steelers
winning six Super Bowl titles and Arizona winning none is an outcome and
cannot be used to determine football fairness. Fairness in either case
must be settled by process questions such as: Were the rules unbiased
and evenly applied? If so, any outcome is just and actions based on
empathy would make it unjust.
Walter E. Williams
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