Empathy should have no role in judging appeals

If empathy should have a role in judging appeals, then Con should tell us what role it should have. Con tells us, "The interpretation of the broad language in the Constitution reflects the values of the judges, as there isn't always a definitive right and wrong." Con gives the example of interpreting "cruel and unusual punishment" as an example of when empathy should be used to render a decision. The are several alternatives to the judge using his own feels of what is "cruel and unusual." The judge might rely upon the original concept of cruel and unusual, under the strict constructionist legal theory that changes from original intent ought to be embodied in amendments, as provided for in the Constitution as the authorized way to change meaning. However, under the "living document" legal theory, the judge could rely upon what the consensus of state legislatures takes to be cruel and unusual. There is no prohibition against states having more restrictive standards than the Constitution allows. An alternative, also under "living document" legal theory, would to rely upon polls of the opinions of citizens as to what "cruel and unusual" means today. Neither of the alternative living document theories rely up how the judge himself empathizes with parties in the case, but rather upon objective assessments majority sentiment. Con would have none of that. He wants the judge's personal feeling to come into play. If empathy has a role in appeals decisions, then that role will move the decision one way or the other based on the judge's feelings. Con seems to assume that the judge will always feel the way Con does, but legitimizing the practice does not provide any guarantees of the outcome. In another example, Con argues that the Court should feel sorry for the girl who was searched and rule in her favor even if the legal factors would otherwise have made the ruling go the other way. But if a justice happened to empathize with the school administration trying to keep order in an unruly school, a notion that empathy should play a role allows any decision dictated by the jurist's feelings. A written opinion would have to say, "The law was close so I went with my feelings." That's unacceptable. In the case of the girl being searched, we should want the judge to consider the Fourth Amendment, the Ninth amendment, and other legal factors involved in order to make a decision based upon law. If it is unclear, then he can use one of the methods of the law I cited to arrive at a decision. If he takes the living document approach, the judge could survey state laws regard student searches or even public opinion polls. He should never make law based upon his feelings. Con points out that the Supreme court has original jurisdiction in some cases. It doesn't matter whether or not the Supreme Court has original jurisdiction in some cases or not. The resolution deals only with 'judging appeals." In any case, it seems unlikely in any case that empathy would enter into decisions involving states. Imagine a judge writing, "I voted for Alaska in this case. They are such a cold state, I felt really sorry ..." That's not likely. Con argued that cases are "often" close. The implication is that judging according to law is rarely adequate, so empathy ought to be the tipping point. In the worst year in decades, 2007, 5-4 decisions occurred in about a third of cases. It dropped last year. Most of the time liberal and conservative justices rule consistently based on the law. I argued that if interpretation of the law was unclear, then there were at least five methods within the bounds of law that could be used to decide close cases. Even if one wants to reinterpret the Constitution yearly, the empathetic expressions of the States and of the public can be used rather than personal empathy. Con's rebuttal was to attack each method as being inapplicable in some cases. However, that does not mean that relying on empathy is a better method. A judge not ought rule that "the precedents seem inapplicable, so I went with my feelings." For example, the method of constructing an analogy with precedent is always applicable. Every new case is most like *some* previous case, even if it is not identical to some previous case. The point is that the judge should use one or more of the methods within law, rather than empathy. Con argues that not all laws that he believes are bad will be overturned by legislatures, and that some bad laws would be overturned more quickly by courts than legislatures. The question, then, is whose empathy should prevail and how quickly. Keep in mind that empathy is subjective. If when voters act they do not do what Con wants, it is not an argument for an empathetic court. Perhaps the court will not share Con's opinion of who deserves the most understanding. To accept empathy as a factor, Con must agree to always accept the subjective judgments of the Court no matter which way they cut. Court decisions are much more difficult to reverse than legislative decisions. It's far better to let voters and legislatures struggle with the issues than to give judges free play with their feelings. It's true that judges can act faster than legislators. Authoritarian rule has the advantage of speed. Kim Jung Il has never had to suffer the frustrating delays of getting voter concurrence. The whole system of checks and balances, the three branches of government, and the bicameral legislature are all designed by the Constitution to favor democracy and deliberation over speed. Upsetting that on the basis of the feelings of judges would be a great mistake. Con claims that the Brown v. Board of Education was decided based upon empathy, but Con offers no evidence in support of that view. It was definitely not one of those 5-4 decisions where an empathic judge tipped the scales. "Handed down on May 17, 1954, the Warren Court's unanimous (9-0) decision stated that 'separate educational facilities are inherently unequal.' " Brown v. Board of Education was decided based upon direct reading of law, the 14th Amendment in particular. If the Constitution demands overthrow of a lower court ruling, it ought to be implemented right away. Direct reading of law can always overcome precedent. My list of ways to decide close cases assumes that the law was not the determining factor, so some other method within the bounds of law, like precedent, should be used. In arguing Griswold, I noted that my argument only applied if the decision to overthrow the law was not based upon empathy. It is the job of the Court to invalidate laws that are unconstitutional. On that basis we nonetheless expect some close decisions. I used Griswold to point out that it would be wrong for a court to use their personal feelings to make law. If a law is Constitutional and factors of empathy are compelling, then the legislature or the voters will see to it that the law is changed. If the empathy is not compelling then the law will not be rescinded. Con wants the empathy of judges to short-circuit the legislative process. Con claims, "The law is not black and white, as Pro would like it to be." If I thought the law was black and white I would not have listed five methods within the law by which gray areas of the law could be resolved without the judge using his feelings to force the outcome. Appeals cases deal solely with questions of law and should rely upon law and legal theories that deal with questions of law. Even under the legal theory of the Constitution being interpreted as a living document, it should not be the judge's personal feelings that guide interpretation, but rather the objective consideration of the sentiment of the nation. Allowing empathy of judges to play a role may not get the results one wants; recall that President George H.W. Bush though David Souter would be a conservative justice. The resolution is affirmed.