Empathy should have no role in judging appeals

Con implies that most Supreme Court cases are close decisions and therefore cannot be decided on the basis of law, so therefore empathy should be a factor in such cases. After making the argument that empathy is needed to render a decision, he makes a perfunctory contradictory claim, "Empathy is not meant to decide the outcome of a case. Rather, empathy should complement and inform the judge's approach in a decision." He never explains how empathy works to resolve cases without becoming a factor deciding their outcome. The idea that empathy can "complement and inform a judge's decision" but not be a factor in deciding the outcome demands an impossibility. It is no more than doublespeak for allowing judges to make decisions based upon their personal feelings rather than upon the law. Con is wrong in implying that most Supreme Court decisions are close ones, and wrong in suggesting that empathy is needed to resolve the cases that are close. The Supreme Court is an appeals court. The sole function of the Supreme Court is to determine if a lower court did not follow the law, including the Constitution. We expect there to be some close cases regarding what is and is not the law, but the methods for determining the outcome should relate solely to methods of interpreting law, not who a Justice feels ought to win. It's true that most cases appealed to the Supreme court are not accepted. We should expect that most of the time the lower courts got the law right, so there is no proper grounds for appeal. Of the cases accepted, it is not true that most subsequent Supreme Court decisions are close ones: "A year ago at this time, [in 2007] the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases, the highest proportion in years, had been decided by margins of a single vote." -- "At Supreme Court, 5-to-4 Rulings Fade, but Why? " NY Times, http://www.nytimes.com... So in a "highly polarized term," two-thirds of the cases were decided by majorities of 6-3 or greater. That shows that in most cases the Justices have a substantial consensus in their reading of the law. Nonetheless, there are cases where interpretation of the law is close. There are many ways to resolve close decisions based solely upon law when the direct reading of the law is unclear. Justices may a. rely upon a precedent of interpretation, even if the precedent is doubtful, rather than adopt a new reading, using the stare decisis principle http://en.wikipedia.org... b. rely upon analogy to a precedent rather than directly upon precedent, "There are times, however, when a court has no precedents to rely on. In these "cases of first impression," a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential." http://www.answers.com... c. rely upon a somewhat broader interpretation of the will of Congress or the will of the writers of the Constitution rather than a somewhat narrower interpretation, based upon law rather than empathy http://en.wikipedia.org... d. have a preference for letting a lower Court ruling stand rather than overturn it, for example, Chief Justice Roberts preferred to let the California Medical Marijuana law stand http://liberalvaluesblog.com... e. use legal principles of common law to interpret specific laws "lex communis ... In modern usage, frequently used to denote unwritten law which is generally derived from cases decided by courts, and not from the express authority contained in a statute. As a general term the common law may express the general customs of English law (and those in legal systems derived from England, such as that in the United States), originating from its medieval inheritance, which refers to early laws, unwritten in form but administered by the common law courts." http://www.answers.com... It need not be just one of these factors. We suppose that many appropriate factors related to law would enter into a Justice's decision in a complex case. The Court gets the big bucks, so to speak, for unraveling difficult issues of law. We have every right to expect that the Supreme Court can act solely based upon law, difficult decision or not. Pro cites the case of high school girl who was strip-searched for apparently inadequate reason. I feel sorry for the girl, don't you? Does it follow that she should win the case regardless of what the law provides? No. If she loses the case, parents in Arizona will be outraged that their local legislature has allowed such a thing. They will light their torches and start marching towards the State House. At that point there is a good chance that the situation is remedied, and in the process they will most likely clean up the body of law related to what is and is not permissible in searching students. Does a zealous Assistant Principal have the right to pat down a female student? The legislature should act, rather than having another case brought to the Supreme Court to decide. If the legislature does not act, then it will be an issue in the next campaign, and legislators will have to defend their stance, either successfully or unsuccessfully. Empathy should place a role in the voting process for candidates and for the voting process by legislators for laws, not the appeals process. The fundamental error in Con's argument is the assumption that the process ends with the Court, so if empathy does prevail in the Court, all is lost. That is wrong. What has been happening is that the Court is usurping the legislative role in making decisions. In Griswold v. Connecticut http://en.wikipedia.org... the Supreme Court overruled Connecticut laws banning contraception. The Connecticut laws were patently absurd, but the legislature had failed to act for fear of losing votes in predominantly Catholic districts. Had the Court not acted, it is inevitable the laws would have been overturned by popular demand. I am not arguing the Constitutional merits of this particular case. My purpose in citing Griswold is to make the point that empathy need not be invoked at the Court in order for empathy to prevail. In fact, if the legislature is forced to act, it is likely to clean up much of the whole mess it created rather than having the Court pick off one narrow point at a time. We should want the Arizona legislature to broadly define the bounds of school searches, whereas the Court can only rule that one specific instance is disallowed. Pro asserts, "Empathy is not sympathy. Empathy is merely identifying with the thoughts, feelings, and state of another person, ... It is important when considering the person who was cruelly or unjustly punished. It is important when considering the person who was refused a fair trial. It is important when considering the rights of someone who has been oppressed for over 200 years. ..." Why is it important? It is only important so the judge will base his judicial opinion upon feelings and not upon the law. Otherwise, the law would suffice. It is neither necessary nor desirable for appeals courts to use empathy to reach a decision. They should use legal principles alone. If a straight reading of the law is ambiguous, they may use legislative intent, precedent, lower court decisions, or broader legal principles to reach a decision, but they should not use their feelings for who they want to win. Empathy should remain the proper province of voters and legislators. The resolution is affirmed.