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What Does Empathy Mean for Judges?

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Dahlia Lithwick and Sonja West have a post over at Slate about Justice Stevens and the role empathy may have played in his decision-making:

Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you're standing.

The authors then give several examples of where this judicial empathy impacted decisions made by Justice Stevens including Illinois v. Wardlow and Safford v. Redding.  But if the argument is that empathy plays an important role of a judge's decision making apart from his or her general interpretative framework, these cases hardly seem compelling.   Wardlow held that flight from a police officer alone is sufficient to support a finding of reasonable suspicion under the Fourth Amendment; Redding held the search of student's underwear by school officials exceeded its scope based on the facts and was unreasonable under the Fourth Amendment. 

The holdings in these cases largely track Justice Stevens' ideological and interpretive framework which generally sought to limit police authority under the Fourth Amendment.  It's hard to see how empathy played any special role in these cases.  That is, absent Justice Stevens' empathy would he had cast his vote differently?   Arguably, empathy tells us something about a judge when it is a factor that accounts for votes inapposite to a judge's ideological or interpretive framework:  a vote which favors crime victims when one is generally sympathetic to the defense bar or vice versa.  Otherwise, it's hard to see just what role empathy has as a quality deserving special merit in consideration of the next Justice.

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Q: "What Does Empathy Mean for Judges?"

A: That they get invited to be fawned over at the next ABA reception.

Q: What does empathy mean for crime victims?

A: Trouble. This is because those most often receiving empathy are the criminals. Victims get to sit in the corner.

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