The danger of the empathy standard

Stuart Taylor has been looking over the opinions in the strip search case and wonders how President Obama's empathy standard should play out there. You can well understand having empathy for the 13-year old girl strip searched because she was accused of possessing Ibuprofen. But what about the partial dissent by Stevens and Ginsburg that also held that the school officials should have been held liable for the trauma inflicted on the girl?

Stevens argued, in an opinion joined by Ginsburg, that the assistant principal should be liable to pay damages for his "outrageous conduct." He did not deny that many federal appellate judges had suggested that such searches were lawful. Rather, Stevens (and Ginsburg) declared that "the clarity of a well-established right should not depend on whether jurists have misread our precedents."

Think about that. How would you like to be a school official living under the Stevens-Ginsburg view of the law? You could end up losing a chunk of your life's savings for ordering what several federal appellate judges had previously held to be a legal search. Judges, of course, enjoy absolute immunity; the Supreme Court has made sure of that. But under the law according to Stevens and Ginsburg, it could be open season on any school official who relies on prior judicial rulings that the Supreme Court ends up repudiating. (Emphasis in the original)

This has me wondering how a judge attuned to the "empathy" that Obama seeks should approach the many cases pitting real people against other real people. Empathy for Savana argues for requiring the assistant principal to compensate her. Empathy for the assistant principal -- "whose motive throughout was to eliminate drugs from his school and protect students," Souter noted -- argues the contrary. And most such officials are hardly rolling in money. What's an empathetic judge supposed to do?

Wouldn't the empathy standard maybe come into play here as you feel for a school official at risk of losing his life savings for, as Taylor points out, something that other courts had ruled permissible.

And then Taylor continues to take on Ruth Bader Ginsburg's public declaration of sympathy for the girl in this case and worry that the eight male justices couldn't really understand how traumatic this had been for her because they were not female.

Ginsburg complained to [USA TOday's] Biskupic that some of her male colleagues' comments during the April 21 oral argument showed that they did not understand what a "sensitive age" 13 was for Savana because "they have never been a 13-year-old girl."

I agree that the court needs more women. I also agree that as a general rule, because of anatomical and perhaps other differences, it may well be more traumatic for 13-year-old girls -- I have never been one, but have raised two -- to strip in front of authority figures than for boys to do so.

But how relevant should such distinctions be to Fourth Amendment law? If some other case comes along in which school officials want to strip search a 13-year-old boy for ibuprofen pills, should they go ahead because boys are used to running around naked in locker rooms?

Memo to school officials: Don't try it. But perhaps some senator should ask Judge Sonia Sotomayor at her Supreme Court confirmation hearing whether girls and women should enjoy broader constitutional protections than boys and men in such cases, and perhaps in others, too.

See how empathy can play both ways? Maybe it would be better just not to use it in making decisions.

As Jonathan Adler points out, Justice Alito seemed to be saying as much in a comment in his concurring opinion in today's Ricci decision.

There's also some interesting language at the close of Justice Alito's concurrence (joined by Justices Thomas and Scalia) that I read as a subtle rebuke to Judge Sotomayor and the Second Circuit panel (which expressed sympathy to the firefighters in its per curiam opinion), as well as a rejection of an "empathy" standard for judicial decision-making.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

Once again, this was an issue where the empathy standard could cut both ways. Whom should an empathetic judge have more sympathy for: the minority applicants who didn't pass the test and so didn't get promoted or the white (and one Hispanic) firefighters who studied hard, did everything they were asked to do, but then didn't get promoted because no blacks passed the test? Once again, empathy doesn't give us a clear sign of who is more deserving. How much better to decide, as Justice Alito indicates, based on the law, rather than on "sympathy."