President Barack Obama drew significant criticism from conservatives when he said that he wanted to appoint U.S. Supreme Court justices with “empathy.” He expressed this during the presidential campaign and repeated it when Justice David Souter announced his resignation in the spring of 2009. But the intense criticism caused Obama and others to stop speaking of empathy as an important attribute in a justice. This is a mistake, and two cases argued at the beginning of this Supreme Court term show the importance of empathy in judicial decision-making.
Empathy, like so many qualifications, is elusive to define. It is about justices considering the effects of their rulings on people and their lives. In deciding cases, justices often have great discretion, and Obama’s point was that the Court should try to understand, and always be mindful, of the human impact of its decisions. The opposite of a person with empathy is a sociopath and surely that is not what we want on the nation’s highest court.
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