Judging the Judges



Perhaps the most lasting legacy of an American President is not his landmark legislative achievements or his administration’s development of the nation’s foreign policy but his judicial nominations. From the Affordable Care Act to Same-Sex Marriage, increasingly it seems like nine voters rather than 300 million Americans have ultimate responsibility for the most pressing social and policy issues of the national agenda. This reality behooves Americans to think about difficult questions: What is the law? How should the most important cases be decided, and by whom? What are the foundations of the American legal system?

Barack Obama has made it clear that he believes that empathy is the most important characteristic for a federal judge to possess, while his critics decry empathy as partiality and extra-legal activism. At the heart of the debate over so-called “judicial empathy” is a fundamental disagreement about what it means to judge a legal issue—a disagreement sharpened and highlighted along partisan lines. On the one hand, there is a conception of the legal world as a social system, molded by, and therefore contingent on, the type of people who populate it; on the other, there is a legal world that should be as divorced as possible from the obscurities and partialities of human beings so that it might be as fair as possible.

In this feature, the two sides of this debate are explored, and David Johnston, Professor of Political Science at Columbia University and author of (most recently) A Brief History of Justice, offers an alternative analysis of judicial decision-making that goes beyond the partisan paradigm. •

Justice is, as Barack Obama said, not just “some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” A system of legal justice must be based on a system of moral justice, or else it becomes nothing more than an abstract geometry used to normalize unjust social relations. There can be no law without social and ethical content, and therefore there can be no legal reasoning without moral reasoning, which requires empathy.

Indeed, legal justice that fails to correspond to moral justice is not deserving of the name; for example, everything that the Nazi regime did was “legal” according to their own legal system. Yet in this case legality fell so far from that which constitutes the pale of moral justice and respect for natural rights that it could no longer be considered a “justice system,” and therefore was justifiably prosecuted ex post facto by the Allied powers.

It is a fiction—perhaps a comforting fiction, but a fiction nonetheless—that holds law to be a self-contained, autonomous system of thought, resting on its own foundation. At its core, law deals with people, with human conflicts, and rests on socially held norms of right conduct; as such, divorcing the legal system and its process of reasoning from her natural spouse—the social realities and ethical concerns of the systems’ constituents.

Judging is not Umpiring; questions of law are not answered simply by applying a formula of “legal reasoning” to a given set of facts. Rather, judging requires an understanding of the real-world consequences of a given decision and the application of a moral calculus to those results, or in sort, it takes empathy. •

There can be no justice without fairness. This fairness, America’s cherished notion of “equality before the law,” must be considered the fundamental basis of the legal system. As such, those who decide cases must hold themselves to as high a standard of impartiality as possible.

Perhaps true impartiality is impossible: it seems inescapable that, as human beings, judges will be influenced to some extent by extra-legal concerns. However, this reality means not that judges should abandon legal reasoning and descend into partiality, but rather that they need to be even more careful to hold themselves to a high standard of impartiality. Responsible judging means not accepting the presence of bias under the guise of “empathy” but working vigilantly to avoid such bias.

The role of the judiciary is not to shape society in the way they, a group unresponsive to the democratic process, see fit, but to interpret rigidly the laws created by the political process in relation to the Constitution. Judges need not apply their own social and moral norms but instead should adopt the norms contained within the Constitution and the laws of this nation, using legal reasoning to deduce the results from the statutes and facts of the case.

To say that judges ought to start from the implications of a decision and come up with a decision that fits their preferred outcome gets the whole legal process backwards. Unless judges start from facts and laws and reach decisions from legal reasoning, we risk politicizing the legal system and thereby losing the integrity of the law. •


The confirmation hearings of Kagan and Sotomayor brought the issue of judicial empathy into mainstream public discourse, but there’s also obviously an ongoing academic conversation on this topic. How closely to these two dialogues relate to each other?

First, there is expertise that I don’t have; I’m not a scholar of the court. But there is a discussion about judicial empathy and its importance, especially on the high court, and it does mirror the discussion in the press in part. I think there is a more relevant issue though, which neither latches onto completely, but that is really significant and has to do with social understanding. There are assumptions that Justices make about the world in which they live. Let me give some examples. The Court that decided Lochner v New York in 1905, a landmark freedom of contract case, thought of markets as natural forms and based their reasoning on this idea of the market as natural. Or the fact that for much of history women were not allowed to testify in court, because a certain social worldview held that women were naturally unreliable and that therefore their testimony couldn’t be trusted, much in the same way that during the OJ Simpson trial the jury seemed to completely disregard the testimony of the Los Angeles Police Department, because, in their social imagination the police were untrustworthy. Empirically, the testimony of women is still much less likely to be believed in the United States, both by men and women—even female jurors are less likely to trust female testimony. So there’s a sort of social imagination driving legal decisions, socially held ideas and a certain worldview that inevitably color legal practice. And this importance of social imagination is something that is very much absent from the way that we talk about judicial empathy.

In your experience then, how do judges actually approach cases? Does a certain worldview color their thinking so that they see the facts of the case and decide upon an outcome, and then confabulate legal reasoning for it? Or, as is more “traditionally” thought, do they take the facts of the case, apply a relevant legal framework, and reach a decision?

Well this dichotomy misses the point, because the way Justices read the law is in the light of their assumptions of the social world. That is to say that the legal framework itself is a product of a social worldview. Words are ambiguous; the whole point of judging is that words can be interpreted in many ways. What the social imagination does is to influence a judge to read some of these ways and ignore others. It is not necessarily a conscious process. A particular set of assumptions about the world, and particularly about the social world, permeates every part of the legal process—facts, reasoning, and outcome.


So are judicial decisions, especially landmark decisions, the product of general social change that has already occurred? Or, like for example Brown v Board, do they instigate new sets of assumptions about the nature of the social world that then become generally accepted?

I would say that typically—not always, but typically—decisions, including landmark decisions, are the culmination of a process of social and intellectual development that takes place outside of the courts. For example, going back to Lochner, the decision applied Freedom of Contract to the interpretation of the United States Constitution. But this was in 1905, and it has been credibly argued that the high point of Freedom of Contract was in the late 1870s. In fact people like [British Reformer and Academic Thomas Hill] Green in “Liberal Legislation and the Freedom of Contract” had already provided the important intellectual critique of Freedom of Contract in 1881. So the court is generally slow to incorporate changing assumptions about social arrangements. Brown was actually the product of a lot of intellectual groundwork, even though it seemed like an aberration or a departure at the time. For example the Army had already been legally desegregated under Truman; Brown didn’t lead the social change, though it of course precipitated more of it. So I would say that that even landmark decisions tend to be later, often much later, results of changing social imaginations.

So given the increasing pace of change is the court then going to be increasingly irrelevant, or pressured by general public opinion? Or just seen as out of touch with the real world, as they were accused of after the Aereo [American Broadcasting Companies, Inc. v Aereo, Inc. (2014)] case this past April (April 22, 2014)? What about an issue like Net Neutrality?

That’s an interesting question. I’m not sure I have a good answer for that, but certainly the increasing complexity of legal issues—and the increasing technical complexity of legal issues—makes the decisions more difficult and visible. In the specific case of Net Neutrality, the issue intertwines the court’s understanding of technology, which it probably gets totally though briefs, and its understanding of market systems, which it probably considers as fixed. Now I personally think that market systems also can change quite a lot, and do, but the court probably treats their understanding of markets as fixed and tries to apply it. So this would tend to make the court more conservative—not in the political sense of Liberals and Conservatives, but in the sense of the pace of change—and slower in applying new ideas of social arrangements to the law.

So is this [slowness] a major weakness in the court, then?

I would say it’s definitely a weakness, but not necessarily a major one.

Do you have any closing thoughts on the way the judicial empathy debate has played out?

Yes: It has been interesting to see over the last 30 years how the public presentation of decisions, especially those of the US Supreme Court, a focus of great interest in this country, has changed and been shaped to the point where it is now. We have a very activist court that is politically conservative, possibly more than any court since the very early days of this country—essentially legislating from the bench—but the popular imagination has managed to take the court’s activities as not radical, and understand them as and make them something not radical. There has been this concept, this narrative, that because these people are Conservative—by which I mean the court has a Conservative, albeit narrow Conservative, majority—that then they are also conservative in employing the law. When [Chief Justice John G.] Roberts claimed (clearly falsely) in his confirmation hearings that he was just there “to call balls and strikes” I cannot believe that he, in his mind, meant it; and of course he was at a Congressional confirmation hearing, and that is the sort of thing he was expected to say at a confirmation hearing, so it’s hard to read much into it, but that he then has managed to exercise a great deal of activism yet there is this story about how they [the Roberts Court] are not [exercising a great deal of activism]. And I do not think that the Justices actually think of themselves as engaging in activism, but are instead doing what I described earlier—being influenced by a certain understanding of the social world around them, but the product, if we step back and look, as been extremely activist from this outside prospective.

Why do you think this narrative exists, and how has it happened?

Well probably the The Federalist Society, a conservative association of lawyers, which has been active in the past 30 years is the single most identifiable actor in creating and sustaining this narrative of the Conservative court, and promulgating it. But there is obviously a social motivation for doing so, in that it legitimates the law as apolitical and legitimates a certain ideology. It is the same reason why the Tudor Kings created this narrative about Richard III as so depraved—he was the rival who had been overcome, so when he imprisons or beheads people it’s tyrannical, whereas the Tudors can do what they want. So it’s clearly a political narrative, for political purposes. •