When Obama declared "empathy" a necessary quality for a Supreme Court justice, the main organs of print and TV media responded in their typically bifurcated way. Liberals praised Obama for understanding the need for a justice who could relate to "everyday people" while conservatives predictably lambasted the president for soft-mided, emotional wishy-washiness. One thing that journalists of all stripes seem to agree on, however, is that Obama's position represents an innovation, yet another example of how this president, for better or worse, thinks "outside the box."
As with every complex and meaningful issue in US social and political life, the MSM has understood the battle over Obama's selection of a new justice in the context of interpersonal rather than social conflict. That Obama's own statements about the meaning of empathy have echoed this tendency to personalize large issues contributes to this confusion.
A look at the history of US jurisprudence suggests that, rather than a sentimental innovation, Obama draws on a well worn body of legal tradition in calling for a justice with empathy. In The Common Law, Oliver Wendell Holmes, Jr. argues that "the life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." I argue that we need to understand Obama's call for empathy in the context of what Holmes calls "experience."
Holmes's influential 1897 essay "The Path of the Law" is suggestive in understanding what the great justice meant by experience. Here Holmes asserts that "judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage." As a consequence, the "social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view." Holmes wrote the essay as an effort to guide legal education and theory away from antique abstractions like Roman law, for example, and towards a more scientific understanding of current case law and its relation to broader currents in social life generally.
Holmes wrote "The Path of the Law" at a time of profound social and economic upheaval owing to rapid industrialization, immigration and political tumult. A rather private man with intensely public interests, Holmes surrounded himself with prominent young intellectuals like Felix Frankfurter, Harold Laski, and Louis Brandeis, among others. As leaders of the progressive movement, these thinkers introduced Holmes to emerging developments in the relatively newfangled social sciences of which they were leading exponents. Such works influenced Holmes's jurisprudence, and the ideas expressed in "The Path of the Law" prove foundational in Legal Realism, a progressive legal theoretical offshoot, and Law and Economics, a more recent development. Here Holmes's project and that of the progressives may be understood as akin to that of Enlightenment philosophers who attempted to establish a new grounding for ethics and social knowledge with the breakdown of older systems of authority.
What brings Holmes's notion of experience, his work as a theorist, the progressive movement, and these schools of legal thought together is an understanding of the constructive, legitimizing role that the social sciences play in public life. While Obama's call for empathy deliberately - even manipulatively - plays up the word's interpersonal connotations, Obama the legal scholar understands the forms of social knowledge that endow such connotations with public relevance. It is within this tradition of progressive social science rather than mere affective emotionalism that Obama's call for empathy should be understood.
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