Monday, June 20, 2016

This is why "empathy" on the Supreme Court is a good thing

A few years back, President Obama earned sneers from conservatives when he said "empathy" is a quality he looks for in making judicial nominations. I thought about that today when reading about Justice Sotomayor's dissent in a police evidence case.

Essentially, the court ruled that evidence can sometimes be used against defendants even if that evidence was gathered by police illegally. Sotomayor was cranky. From TPM:
She was joined in most of her dissent by Justice Ruth Bader Ginsburg (who also joined a dissent penned by Justice Elena Kagen). But, in the final portion of Sotomayor's dissent, she said she was "[w]riting only for myself, and drawing on my professional experiences." There, she expounded upon the "severe consequences" the unlawful stops in question have, including being "degrading" and causing "indignity." 
"Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more," Sotomayor, the first Latina justice on the Supreme Court, said. "This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact." 
In this case, "empathy" means having a visceral understanding that some people — minorities — are targeted for stops that have "pretextual justification after the fact" more than others. "Empathy" means knowing that outside the ivory-tower domain of an appellate courtroom, the law falls on different people in disproportionate and burdensome ways. "Empathy" seeks, then, to hold the law not just to the letter of the Constitution but the spirit. Justice Sotomayor is an asset to the court.

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