Monday’s Supreme Court decision overruling an appeals court opinion endorsed by Judge Sonia Sotomayor in favor of a group of white firefighters in New Haven, Connecticut, will likely reignite the debate over the role of empathy in judging that was kicked off by Sotomayor’s nomination.
For weeks, Republicans have been taking both President Obama and Sotomayor to task for their remarks suggesting empathy is an important qualification for a judge. “When there is empathy toward one, is it not prejudice toward the other?” complains ranking Senate Judiciary Committee member Jeff Sessions of Alabama, by way of criticizing Sotomayor’s views.
Any time a white litigant loses out to a minority candidate in the context of an affirmative-action lawsuit, conservative commentators in general, and judges in particular, are prone to explosions of sentimentality that would make Dickens blush.
Senate Minority Leader Mitch McConnell echoes that criticism: “Judge Sotomayor’s writings offer a window into what she believes having empathy for certain groups means when it comes to judging. And I believe that once Americans come to appreciate the real-world consequences of this view, they’ll find the empathy standard extremely troubling as a criterion for selecting men and women for the federal bench,” McConnell says.
The idea being peddled here is that the law is or should be blind to whether a litigant has a sympathetic personal story that tugs at a judge’s heartstrings—especially if it does so because of the judge’s ethnicity. Such considerations, Sotomayor’s critics argue, ought to be irrelevant to legal interpretation.
Right-wing critics tend to make one striking exception to this rule, however. Any time a white litigant loses out to a minority candidate in the context of an affirmative-action lawsuit, conservative commentators in general, and judges in particular, are prone to explosions of sentimentality that would make Charles Dickens blush.
Consider the Ricci case, in which the Supreme Court on Monday reversed an appellate court ruling made by a panel of judges that included Sotomayor. In Ricci, the city of New Haven threw out a test it planned to use to help select firefighters for promotion, after discovering that minority candidates did poorly. It’s easy enough to feel empathy for city officials, caught as they are in the Catch-22 of American employment law, which forbids discrimination based on race but opens government and private employers to “disparate impact” suits if apparently race-neutral hiring criteria produce racially disproportionate results.
The city argued it should be free to disregard the test, if its motivation for doing so was to avoid a disparate impact lawsuit. By a 5-4 vote the Supreme Court disagreed. Using the sort of splitting the baby reasoning so common in this area of the law, Justice Anthony Kennedy’s majority opinion agreed that the city could discard the test in order to avoid such a suit—but only if it could prove it had a good basis for thinking it would lose.
Since five justices didn’t think the city could prove that, the court ruled for the plaintiffs: several white (and one Hispanic) firefighters who said they were unfairly denied promotions.
The most interesting feature of the nearly 100 pages that make up the opinion, concurrences, and dissent in the case is the squabble between Justice Samuel Alito and Justice Ruth Bader Ginsburg about “sympathy” for the plaintiffs. In what is almost surely an allusion to the current argument about empathy and judging, Ginsburg’s dissent notes that the plaintiffs “understandably attract this Court’s sympathy.”
Alito fires back that “sympathy is not what the [plaintiffs] have a right to demand. What they have the right to demand is evenhanded enforcement of the law.” Yet in the previous paragraph Alito had gone on at length about the sacrifices the plaintiffs had made to do well on the test:
“Petitioners are firefighters who seek only a fair chance to move up the ranks in their chosen profession. In order to qualify for promotion, they made personal sacrifices. Petitioner Frank Ricci, who is dyslexic, found it necessary to ‘hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.” He “studied an average of eight to 13 hours a day… , even listening to audiotapes while driving his car.’ Petitioner Benjamin Vargas, who is Hispanic, had to ‘give up a part-time job,’ and his wife had to ‘take leave from her own job in order to take care of their three young children while Vargas studied.’ ‘Vargas devoted countless hours to study … missed two of his children’s birthdays and over two weeks of vacation time,’ and ‘incurred significant financial expense’ during the three-month study period.”
According to Alito’s reading of the relevant law, all these facts are completely irrelevant: If the firefighters hadn’t studied at all, they would still be entitled to the same relief, given the city’s behavior. What is the point of including such information, beyond generating sympathy for the plaintiffs, and demonstrating Alito’s no doubt genuine empathy for their plight?
All of this is reminiscent of Justice Antonin Scalia’s explosion of empathy in an earlier affirmative-action case. This supposedly hardest-headed of all conservative justices practically wept onto the pages of the U.S. Reports when he considered the plight of Paul Johnson, a white male litigant who lost a promotion to a woman who scored slightly lower on an employment test:
“It is unlikely that today’s result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers, for whom the cost of hiring less-qualified workers is often substantially less—and infinitely more predictable—than the cost of litigating Title VII cases. In fact, the only losers in the process are the Johnsons of the country... The irony is that these individuals—predominantly unknown, unaffluent, unorganized—suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.”
Unlike Scalia and Alito, I don’t think it’s avoidable or disturbing that white male judges find it easy to empathize with white male litigants. What’s disturbing is that they do think it’s avoidable—and therefore they also believe it’s both legally and politically irrelevant that 106 of the Supreme Court’s 110 justices have been white males.
Paul Campos is a professor of law at the University of Colorado at Boulder.