Nebraska Senior District Judge Richard Kopf took Adam Cohen to task for his review of a book about the enigmatic Chief Justice of the United States, John Roberts. What purported to be a book review devolved into a polemic:
Given the court’s current composition, anyone who does not want the law to lurch to the right in civil rights, gay rights, abortion and other areas has to hope Roberts will hold it close to its current course — either based on actual beliefs, or to protect the Supreme Court as an institution. Roberts could become the court’s new moderate center. But Obama’s insight about Roberts’s deep-seated bias against the weak, which rings powerfully true, suggests that may not be the way to bet.
Or as Judge Kopf expressed it more succinctly, “Simple enough. Roberts hates the less fortunate and that is what animates his jurisprudence.” The appeal in Cohen’s review is directed in two directions, similarly but not exactly the same. First, it’s about the law lurching to the right. Second, it’s about “deep-seated bias against the weak.” In his prefatory phrase about the court’s “current composition,” he appears to be dogwhistling about the conservative majority that has become a constant in progressive descriptions of the how courts and judges work, as being labeled conservative is tantamount to being inherently evil in the world of wokeness.
And if you’re not sufficiently aware of the issues at hand, Cohen provides the short list to drive his point home: civil rights, gay rights, abortion.
This is a set up for the intellectually challenged, a threat to general policies they support and believe by this “current composition” led by a man with a “deep-seated bias against the poor.” Or, as President Obama called it, a lack of “empathy.”
What does this mean? Any time a corporation and marginalized individual get into a legal beef, the corp loses? But what if the corporation did everything right, nothing wrong, complied with the law in all respects and acted in a wholly honorable fashion? Is it unempathetic to rule for the corporation, because the other litigant is marginalized? Or is an individual? What if the individual was wrong, but weaker than the adversary? Do we rule for the wrong person because he’s also the weaker person?
What if the other individual has a particularly sad story through no fault of his own? Do we ignore the law and rule for the sadder, the weaker, of the litigants? As every lawyer knows too well, many cases don’t involve an evil litigant, but merely a disagreement about how the vicissitudes of life work out.
Nonetheless, decisions must be made, and they will serve as precedents, guidance for how the rest of us are to conduct our affairs so as to remain on the right side of the law, If the weaker person wins this time, does that mean the rule won’t serve to make the stronger litigant win under slightly different circumstances?
As Judge Kopf noted in a reply comment, the ancient Greeks established that there are three forms of persuasion, ethos, pathos and logos. Each has its place, determined by whether it will be effective in achieving the desired outcome. For the advocate, the best means of persuasion is the one that will work, and that may well mean that all three have their role in argumentation, even if it isn’t a “winner” argument per se. As I noted, I will play to empathy not because defendants necessarily have a sad story, particularly in comparison to the victim of their crime, but in juxtaposition to the bias in favor of the more empathetic victim.
Which raises the question, who is more deserving of empathy? If a defendant was poor and hungry, does he not deserve some empathy? But what if he stole from a shopkeeper who is barely able to pay the rent, provides jobs to five ex-addicts and has two adopted children from a war-torn country? Now who wins the empathy Olympics?
Oliver Wendell Holmes famously said, “The life of the law has not been logic; it has been experience.” He had a way with words, but this is one of those vagaries that seems to justify the rejection of principle in favor of outcomes, when it suits us. Logic can produce harsh outcomes, failing as it does to weigh the relative strength or weakness of the parties in any particular case, instead weighing only the logic of the argument, even if it means a marginalized person fighting a particularly despicable adversary ends up loosing. Does anyone want that to happen?
Well, yeah. Not the outcome, necessarily, as we all have feelings of propriety and sensibility, and can’t help ourselves from hoping the good guy wins over the bad guy, even if good and bad are merely our own biases at work. But then, we’ve seen how empathy turns on a dime and morphs from the savior of empathy to its harshest inquisitor.
Remember Brock Turner, and then the subsequent jihad against Judge Persky for being empathetic to an unacceptable defendant? Or the “slap on the wrist” handed to Paul Manafort, the proxy for Darth Cheeto, which caused whiplash through progressivedom as they were constrained to rationalize why their devotion to mercy for criminal defendants should be turned upside down. The easier solution to these obvious and irreconcilable conflicts is that people felt more empathy toward the victim in the Turner case than Turner. As to Manafort, they just hated him so much that there was no room left for empathy.
Is that what the law should be? If I can beat a case by appealing to empathy, you can bet I will, but appeals to empathy are a two-way street. My experience, Justice Holmes, is that such appeals are not merely inherently inconsistent, but are more likely to bite my client in the butt then serve his cause. More importantly, as a person, they provide me with no guidance as to how to conduct myself, my actions, since I can never be sure that I’ll be the more empathetic soul in the courtroom.
The question isn’t whether we all harbor biases (we do), or whether there is any room for empathy in the law (there is), but which is to be master, pathos or logos. Empathy is an unreliable mistress, and appealing as it may be to passionate folks like Cohen, who care nothing about how we arrive at his chosen policy outcomes as long as we get there, experience reminds us that our favorite outcomes change all the time for reasons that make little sense.
While we may not be so pure as to always decide without fear or favor, that’s what we must aspire to do to the extent our humanity allows.