The Mega-Supreme Court?

We may need more than 1,000 Supreme Court justices if we expect justices to decide cases the way President Obama wants -- by drawing on their "empathy" and "heart."

As President Obama said when talking about Justice David Souter's retirement:

I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. (May 1, 2009).

Although then-Senator Obama said that John Roberts was qualified to decide 95 percent of the cases coming before the Supreme Court, he voted not to confirm him as Chief Justice because he believed that Judge Roberts lacked the requisite "empathy" and "heart":

... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. 

... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. (Congressional Record, September 22, 2005, p. S10366; )

It's not merely a concern for, and desire to help, other people in general that President Obama expects justices to draw upon when making decisions. Instead:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old -- and that's the criteria by which I'm going to select my judges. (July 17, 2007 answer to a question from Dessa Cosma following his speech before the Planned Parenthood Action Fund.)

President Obama's emphasis on empathy and heart in judicial decision making flies in the face of tradition. In fulfilling their role of interpreting  laws they did not make and determining whether those laws are constitutional, Supreme Court justices until now have been expected to set aside their personal feelings and preferences and make decisions that may be personally disagreeable. As Oliver Wendell Holmes, Jr., one of the great Supreme Court justices, wrote in a letter dated December 23, 1921 to Felix Frankurter, "I loathed most of the things I decided in favor of." (Robert M. Mennel and Christine L. Compston (eds.), Holmes-Frankfurter: Their Correspondence (UPNE, 1996), p. 133
By contrast, President Obama wants Supreme Court justices to embrace their personal feelings and preferences. Forgotten are bad Supreme Court decisions made by justices who did just that when ruling in favor of people who looked like them and lived like them and against people who didn't look like them or live like them.

The role of Supreme Court justices has been likened to that of umpires and referees, who interpret rules they did not make and try to apply them consistently. Just as we would not want an umpire or referee to manipulate the rules or make up new ones to help one person achieve victory over another, neither have we wanted Supreme Court justices to interpret the laws or make new laws to award victory to litigants or causes that they personally favor.

Encouraging judges to adhere to the rule of law and set aside their personal feelings and preferences has made it less likely that people will be treated differently depending on who their judge is. President Obama's empathy-and-heart standard will make it more likely that decisions will depend on who appears before the court and the backgrounds of the justices. It also will encourage Supreme Court justices to make new laws, a task they're not constitutionally assigned or prepared to do.

Justices having their heartstrings tugged by homeowners burdened by a loan gone bad and guided by President Obama's admonition that justices stand up for the weak against the strong (Congressional Record, September 22, 2005, p. S10366) may manipulate the laws to rewrite the homeowners' loan. Sticking it to lenders is always popular, but the result -- more people denied a mortgage loan and everyone charged increased interest rates -- would not be good for the country.

Manipulating the laws to keep businesses from laying off workers would be popular. After all, who likes businesses who lay off employees? However, the result -- forcing some businesses to close, making other businesses reluctant to hire new workers, and forcing some businesses to raise prices for their goods and services -- would not be good for the country.

Despite the greater resources available to help them analyze the prospective effects of legislation, legislators often overlook unintended consequences of the laws they enact. Fortunately, they can more quickly correct their mistakes than the Supreme Court.

If we were to agree with President Obama that it's important for poor Hispanics to have a Hispanic justice who understands what it means to be poor and Hispanic, shouldn't it be equally important for other litigants to have someone who empathizes with them? Shouldn't Asian-Americans be represented by an Asian-American justice? Shouldn't there be a justice who has a physical disability? A mental illness? Shouldn't there be openly gay and in-the-closet justices?

Shouldn't there be men and women from each religion and ethnicity? An atheist? An agnostic? Men and women from each region of the United States? Someone who has been a stay-at-home mom? Career women with children and without? A woman who has had an abortion? A teenage mother who reared her child or gave up her child for adoption? Someone from each type of occupation? An undocumented alien? A former prisoner? For that matter, even a current prisoner?

Nothing in the Constitution limits the number of justices who may be appointed to the Supreme Court or restricts who may be appointed.

If we're going to have at least one Supreme Court justice who understands what it's like to be any possible litigant, is the president really the person best qualified to make the choices? We know that President Obama is qualified to nominate a justice to represent people with a multiracial heritage who were educated at private schools and elite universities. But is he qualified to select representatives for other groups?

The principles of rule of law and equal protection of the law were fine ones while they lasted. But the party controlling Congress and the Executive branch has obviously decided they are outmoded.
We may need more than 1,000 Supreme Court justices if we expect justices to decide cases the way President Obama wants -- by drawing on their "empathy" and "heart."

As President Obama said when talking about Justice David Souter's retirement:

I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. (May 1, 2009).

Although then-Senator Obama said that John Roberts was qualified to decide 95 percent of the cases coming before the Supreme Court, he voted not to confirm him as Chief Justice because he believed that Judge Roberts lacked the requisite "empathy" and "heart":

... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. 

... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. (Congressional Record, September 22, 2005, p. S10366; )

It's not merely a concern for, and desire to help, other people in general that President Obama expects justices to draw upon when making decisions. Instead:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old -- and that's the criteria by which I'm going to select my judges. (July 17, 2007 answer to a question from Dessa Cosma following his speech before the Planned Parenthood Action Fund.)

President Obama's emphasis on empathy and heart in judicial decision making flies in the face of tradition. In fulfilling their role of interpreting  laws they did not make and determining whether those laws are constitutional, Supreme Court justices until now have been expected to set aside their personal feelings and preferences and make decisions that may be personally disagreeable. As Oliver Wendell Holmes, Jr., one of the great Supreme Court justices, wrote in a letter dated December 23, 1921 to Felix Frankurter, "I loathed most of the things I decided in favor of." (Robert M. Mennel and Christine L. Compston (eds.), Holmes-Frankfurter: Their Correspondence (UPNE, 1996), p. 133
By contrast, President Obama wants Supreme Court justices to embrace their personal feelings and preferences. Forgotten are bad Supreme Court decisions made by justices who did just that when ruling in favor of people who looked like them and lived like them and against people who didn't look like them or live like them.

The role of Supreme Court justices has been likened to that of umpires and referees, who interpret rules they did not make and try to apply them consistently. Just as we would not want an umpire or referee to manipulate the rules or make up new ones to help one person achieve victory over another, neither have we wanted Supreme Court justices to interpret the laws or make new laws to award victory to litigants or causes that they personally favor.

Encouraging judges to adhere to the rule of law and set aside their personal feelings and preferences has made it less likely that people will be treated differently depending on who their judge is. President Obama's empathy-and-heart standard will make it more likely that decisions will depend on who appears before the court and the backgrounds of the justices. It also will encourage Supreme Court justices to make new laws, a task they're not constitutionally assigned or prepared to do.

Justices having their heartstrings tugged by homeowners burdened by a loan gone bad and guided by President Obama's admonition that justices stand up for the weak against the strong (Congressional Record, September 22, 2005, p. S10366) may manipulate the laws to rewrite the homeowners' loan. Sticking it to lenders is always popular, but the result -- more people denied a mortgage loan and everyone charged increased interest rates -- would not be good for the country.

Manipulating the laws to keep businesses from laying off workers would be popular. After all, who likes businesses who lay off employees? However, the result -- forcing some businesses to close, making other businesses reluctant to hire new workers, and forcing some businesses to raise prices for their goods and services -- would not be good for the country.

Despite the greater resources available to help them analyze the prospective effects of legislation, legislators often overlook unintended consequences of the laws they enact. Fortunately, they can more quickly correct their mistakes than the Supreme Court.

If we were to agree with President Obama that it's important for poor Hispanics to have a Hispanic justice who understands what it means to be poor and Hispanic, shouldn't it be equally important for other litigants to have someone who empathizes with them? Shouldn't Asian-Americans be represented by an Asian-American justice? Shouldn't there be a justice who has a physical disability? A mental illness? Shouldn't there be openly gay and in-the-closet justices?

Shouldn't there be men and women from each religion and ethnicity? An atheist? An agnostic? Men and women from each region of the United States? Someone who has been a stay-at-home mom? Career women with children and without? A woman who has had an abortion? A teenage mother who reared her child or gave up her child for adoption? Someone from each type of occupation? An undocumented alien? A former prisoner? For that matter, even a current prisoner?

Nothing in the Constitution limits the number of justices who may be appointed to the Supreme Court or restricts who may be appointed.

If we're going to have at least one Supreme Court justice who understands what it's like to be any possible litigant, is the president really the person best qualified to make the choices? We know that President Obama is qualified to nominate a justice to represent people with a multiracial heritage who were educated at private schools and elite universities. But is he qualified to select representatives for other groups?

The principles of rule of law and equal protection of the law were fine ones while they lasted. But the party controlling Congress and the Executive branch has obviously decided they are outmoded.