Monday, May 25, 2009


I think it bodes well that Obama has explicitly set out empathy as a desired trait in Supreme Court justices. As an ability to understand other people's lives -- what it's reasonable to expect of them, what will constitute an undue hardship, why homosexuals don't have sex with women -- is important to making the kinds of decisions that Supreme Court justices actually end up making. Empathy is a big part of how we understand people's lives and come to know these kinds of things.

Given the importance of empathy, it's good to set it up as part of a big liberal vision of what judges should do. Right-wingers claim that their judges just interpret what's there in the Constitution and/or that they aren't judicial activists. These two claims are regularly in conflict -- consider Lochner-era jurisprudence, in which the court struck down lots of economic legislation designed to help workers, because it was taken to violate the Constitutional rights of individuals.

There really hasn't been a corresponding liberal vision of what judges do. Many of our positions, like maintaining Roe, are broadly popular, and usually we appeal to those when trying to argue for and against various judges. But it's good to back all of that up with a general account of what makes someone a good judge. And I'm happy to see Obama trying to do that.


Ursula said...

In terms of organizations attempting to set up a 'liberal' or 'progressive' constitutional jurisprudence, you should have a look at the American Constitution Society for Law and Policy ( They started in 2002 or so, sort of as a counterpart to the Federalist Society.
(Full disclosure: I am a student member, prez of my local student chapter, and will be attending the ACS convention this summer. RUTH BADER GINSBURG WILL BE THERE.)

Jonathan Jenkins Ichikawa said...

Not to quibble, but many (about half) of the homosexuals I know regularly have sex with women.

Neil Sinhababu said...

Ursula, that is indeed boastworthy.

Jonathan, I would've thought they'd count as bisexual instead of homosexual. Or are those terms not exclusive?

corvus said...

Jonathan is implying that the term "homosexual" can apply to people with any chromosome formation, Neil. Therefore, half of the homosexual he knows have sex with women, because half of them are women.

corvus said...

That second "homosexual" should be plural.

Neil Sinhababu said...

Oh, whoops.