Mark B. Baer, Esq.

Empathy and Relationships

Judges Should Strive to Provide Equal Justice Under Law

In order to provide equal justice under law, judges must develop empathy.

Posted Feb 12, 2017

The phrase Equal Justice Under Law is engraved in the facade above the entrance of the United States Supreme Court.  

That phrase describes what we expect from our justice system and therefore from our judges.

"[Our society] expects them to be objective, knowledgeable, independent, discerning, practical, and sensitive. It expects them to be fair. These expectations exist because judges have such an important and crucial role. They make decisions that profoundly affect peoples' lives - their livelihoods, safety, freedom, and humanity. But in Canada, the United States, and other countries, numerous studies, commissions, task forces, research papers, and statistical data have revealed that, despite the good intentions of the judiciary, unconscious and pervasive biases permeate the judicial system. By anyone's standards, this is not fair. 

Underpinning the expectation of fairness is the value and goal of equality: all persons are entitled to be equal before and under the law, and should receive the equal benefits and equal protections of the law. Research on fairness in the courts, however, consistently and ironically shows that where judge-made law is biased, the adverse impact falls most often on the historically disadvantaged groups such equal rights guarantees are designed to protect." 

"Justice Under Law" refers to legal justice, which is based upon legally relevant and admissible evidence, which may differ considerably from the facts.  Judges then make credibility determinations (regarding the parties, witnesses, and evidence), factual findings, exercise their judicial discretion, and apply and interpret the law.  

The role of appellate and supreme courts are more limited, in the sense that the judges and justices are reviewing cases based upon the trial courts' records.  

As such, the appellate judges and justices do not have an opportunity to personally observe the testimony. Their role is therefore more limited because, among other things, they are unable to make credibility findings of parties and witnesses who never appeared before them. As long as there is some basis in the record for the trial judge's factual findings, those findings cannot typically be reversed on appeal. Furthermore, unless they find that the trial judge's exercise of judicial discretion was abusive in some manner, they cannot alter such things on appeal. 

While the appellate and supreme courts assess whether the trial judge properly applied and interpreted the law, the party attempting to overturn the decision has the burden of persuading the appellate court of judicial error.

Regardless of whether we're talking about trial judges, appellate court judges or Supreme Court Justices, their decisions are based upon their personal biases, beliefs, assumptions and values, which are formed as a result of our personal backgrounds and life experiences. We all have personal biases, beliefs, assumptions and values. The question is how much our lack of self-awareness is skewing our perception of things.

Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences have very much to do with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn't teach us to see things from other people's perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective. 

With Trump's nomination of Neil Gorsuch as an Associate Justice to the United States Supreme Court, we're hearing a great deal about how some judges interpret the Constitution based upon "originalism", "non-originalism", "natural law", and other such things.  

In his article Should Democrats filibuster Gorsuch?, Erwin Chemerinsky, constitutional law expert and founding dean of the law school of the University of California, Irvine, said the following:

Gorsuch, like Bork and Antonin Scalia, says that he is an 'originalist,' which means that he believes that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process....

An originalist rejects constitutional protection for privacy, including for reproductive autonomy, rejects constitutional protection for marriage equality for gays and lesbians, and even rejects protecting women from discrimination under equal protection because none of these were intended by the framers of the Constitution.

Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as 'he' and the framers unquestionably intended that they would be male. Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia's public schools.

That being said, in his article Supreme Court Pick Gorsuch Is No Scalia, John Dean stated, "Justice Scalia was not a consistent originalist…. Originalists vary in views just like non-originalists."

In his article, Judge Gorsuch's Natural Law, Timothy Sandefur commented, "Gorsuch's views about natural law set him apart from colleagues on the bench—and those differences may trouble not just liberals, but perhaps conservatives and libertarians, too....  Those who embrace natural law, including Justice Clarence Thomas, have their differences."

"According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world."

It bears mentioning that someone who believes, for example, that women can be elected president or vice president isn't going to refer to themselves as an "originalist."  In other words, these labels are nothing more than a means of rationalizing our personal biases, beliefs, assumptions and values.

Since judicial bias significantly interferes with judges' abilities to perform the duties our society expects of them, it seems obvious that they should do anything and everything possible to reduce their biases.  

However, as Kenneth Cloke stated in his book Mediating Dangerously - The Frontiers of Conflict Resolution, "Judges have the most intractable bias of all: the bias of believing they are without bias."

Admission is the first step to recovery, as they say.  

Assuming judges and justices are willing to acknowledge the fact that they are human and that all humans are biased, "a new study suggests that by simply putting ourselves in another person’s shoes, we can significantly reduce our unconscious biases—and significantly improve our real-world interactions with people who look different from us." 

Doing so involves empathy, which "can be a transformative tool for deconstructing unconscious biases and building understanding between people of different backgrounds."

The core of empathy "involves the cognitive skill of perspective taking—the ability to see a situation from someone else’s perspective—combined with the emotional capacity to understand and feel that person’s emotions in that situation."

The following Bible excerpt resonates deeply with me: "The beginning of wisdom is this: Get wisdom. Though it cost all you have, get understanding." This is why empathy is one of the most important skills to develop and practice. It allows us to understand the world as others see it, is a key component of compassion, and is incompatible with shame and judgment. Absent empathy, critical thinking is impaired because not all perspectives are considered, which precludes a deeper understanding of problems. 

Since judges and justices "make decisions that profoundly affect peoples' lives - their livelihoods, safety, freedom, and humanity", the least they could do is attempt to provide "equal justice under law" by developing their empathy.  

More Posts