I tracked down a lot of resources and articles about empathy and jurisprudence for a professor this summer, and with Kagan’s “First Monday” today I was reminded of a blazingly obvious problem with the use of the word. Obvious, at least, to anyone who consults a dictionary.
President Obama, in “The Audacity of Hope”, characterizes empathy as “a call to stand in someone else's shoes and see through their eyes.” (No direct cite available on-line, but the quote is referenced both here and here.)
That’s pretty on point with the OED definition of empathy (gotta have your own local subscription/access to follow that and the next link):
The power of projecting one's personality into (and so fully comprehending) the object of contemplation (specifically the second definition, which is the one most relevant to the present discussion of judicial philosophies).Contrast that with the OED definition of compassion:
The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour.Explicit in the definition of compassion is that the subject of our compassion is suffering or in distress and if we’re compassionate we will be moved to work to spare or succour the party that is suffering or in distress. In contrast, the strict dictionary definition of empathy says nothing about what, if anything, is happening with the subject of our empathy, and also says nothing about whether by being empathetic we will be motivated to do anything about the subject of our empathy.
My ultimate point is that, very strictly speaking, empathy is value-neutral, but the empathy that most commentators have written about, and that President Obama wrote about in his book and spoke about when nominating Justice Sotomayor, is definitely not the strict, value-free dictionary-definition variety of “empathy”; the better word to have used in all these instances would have been “compassion”.
But with politics being what it was, and with President Obama lacking, as I said in another context, the courage of his convictions, he would have faced even more scorn for using “compassion” to describe his ideal judicial candidate than “empathy”. And I think that’s probably why “empathy” has been used in all the legal scholarship I found this summer: it’s a more academic term, a slightly less “touchy-feely”, greeting-card term, but strictly speaking, I think Obama and his fellow travelers want judges and jurisprudence that are compassionate, not empathetic.
One could, strictly speaking, say you feel empathetic for the homeowner who blew away a burglar with his shotgun and was acquitted because of justifiable homicide (to use a random, bizarre example that came to me when thinking about all this). That would be an awkward use of the word, but not incorrect given the OED definition (the more commonly used term would be sympathetic, of course).
Again, since empathy is defined as “the power of projecting one's personality into (and so fully comprehending) the object of contemplation” it says nothing about what that object of contemplation is or what the object it. I think we could legitimately argue that the majority opinion in Bowers v. Hardwick that was truly empathetic: empathetic with the the legislators, citizens, and lawmen of Georgia who passed, supported, and enforced the anti-sodomy law that the Supreme Court upheld in that case (to take another random example that comes to mind). But that’s not the empathy that the legal literature contemplates because the “wrong” party prevailed in that case: the party that was suffering, distressed, and which were deserving of pity and to which most commentators were inclined to spare or succour, to use the terms from the OED definition of “compassion”, but not the definition of empathy.
To use a related, but more current, example: Obama surely hopes that now with Justices Sotomayor and Kagan on the bench, when California's Proposition 8 reaches the high court, a majority of the justices will be compassionate to the "suffering or distress" of the same-sex couples denied the benefit of marriage by Prop. 8 and not empathetic to the majority of citizens represented in that case, those who passed Prop. 8 in the first place. The value-neutral OED definition of empathy would seem to require a cold, value-neutral weighing of the “full comprehen[sion]” of the various “object[s] of contemplation” and rule on the side that had the most numbers, regardless of which side warranted "the desire to relieve" any afore-mentioned suffering and distress, as a compassionate approach would require.