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The same day the Supreme Court (7-2) didn't apply the exclusionary rule to certain cases on appeal,* they ruled 5-4 to consider the age of the person when trying Miranda cases. Dahlia Lithwick used this to support "empathy" in judging. I'm not sure if it is the best example, but perhaps it is a decent one. I provided the below reply in the fray. I have dealt with the issue of empathy in judging a few times already, but since it is repeatedly used as bludgeon in court fights, deemed "liberal" when so done, a periodic reminder seems appropriate.
If anything, Obama’s comment was more neutral than Roosevelt’s. Roosevelt twice used “sympathy” which connotes identification with, or bias toward, another. “Empathy,” Obama’s misconstrued word, simply implies an understanding of, and sensitivity to, the feelings or experiences of another, not any predisposition in favor.
There is another world "out there," the existence of which the Court, I suspect, either chooses to ignore or fears to recognize.
This is not a "liberal" or "conservative" world in any given case. The "common sense" or "grim roster of victims" (to quote Scalia and Alito in the recent California prison crowding case) the judge takes note of can be of a conservative variety. Each judge brings his or her own experiences and perspectives, which is the value of having multi-member benches as much as twelve jurors. This fact, as with Judge Walker being in a same sex relationship, doesn't make them unable to uphold their oath to evenhandedly apply the law. But, judges are not machines. They bring forth points of view. They bring with them human empathy, which is part of how they do their job.
We should be careful to take such judging purely on face value, as a simple application of the law, full stop. Such simplistic compulsion led judges to say that Dred Scott was merely what the Constitution demanded, human sympathy notwithstanding. Alito in dissent in the case here:
a "core virtue" of Miranda has been the clarity
Meanwhile, in a Fourth Amendment case he wrote that was released today:
When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144 . But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful,
All quite "clear" concepts, unlike taking into consideration the youth of the person interrogated! Lithwick again:
Therefore, she explains, "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go" and that—empathy alert!—"such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge."
Empathy or a reasonable approach to the question? But, "reasonable" is not a dry affair, without context or spirit. A spouse or friend who cries "be reasonable!" speaks from a certain point of view and position that the person s/he is trying to convince might simply not accept. A certain understanding that results in them being on a "different wavelength," which might explain how sometimes around here I simply do not seem to be "got" by some people (and they feel the same way, vice versa). Some understanding of another p.o.v., some ability to stand in someone else's shoes, some "empathy" is necessary to be able to even possibly reach some common ground.
It is also necessary to judge. How to properly balance the evidence and determine reasonableness which requires applying rules to people unlike yourself? You need to understand the experiences of others. You need to empathize. As Dahlia notes, each justice does it. As they should. The charade that it is somehow illegitimate was but one annoying aspect of recent Court nomination hearings.
* I respect the dissent, but can't get too worked up over not applying exclusionary rule guidelines not even in place (except in the ether as part of the Constitution) when the event occurred. The troubling part of the ruling really is the continued use of anti-exclusionary rule rhetoric and it is a small favor, if appreciated, that Sotomayor (but not Kagan) concurred separately.
She not only avoided the rhetoric but suggested the rule set forth is even narrower than possibly the case (see dissent). This plus (unfortunate) precedent makes the decision not that bad. The rhetoric is the true problem. And, Sotomayor's concurrence also suggests the "Obama's justices will help the burial" of the rule is a tad overplayed too.