On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation's first Latina Supreme Court Justice. (1) While many Latinos embraced the idea of having "Sonia from the Bronx" (2) on the bench, others were fearful that her jurisprudence, combined with her background, would result in "reverse racism." (3) These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership--enlightening her colleagues to other perspectives--while utilizing empathy shaped by her experiences to facilitate her decisionmaking. This empathy has allowed her to give a voice to the habitually unheard, which inevitably generates fairer decisions.
Part I discusses two competing theories of judicial adjudication: the traditional model and the empathic model. This Part will call attention to the pitfalls of the formalist mode of decisionmaking, while contending that the use of empathy is the more realistic and humane paradigm of adjudication. This Part will also address and dispel some of the criticisms leveled at empathic decisionmaking. Part II maintains that in spite of the attacks directed toward empathy, it has played a vital role in significant Supreme Court decisions. Both Brown v. Board of Education (4) and Safford Unified School District No. 1 v. Redding (5) demonstrate how the use of empathy has allowed the Court to reach more just and equitable decisions. Part III examines Justice Sotomayor's empathic decision making. This Part first provides a brief history of her life, highlighting the challenges she has overcome. This Part then discusses how Sotomayor believes empathy participates in the decisionmaking process. Finally, in examining oral arguments and her separate opinion in Calhoun v. United States, (6) this Part reveals that, while Sotomayor's empathy gives a voice to those who are typically less heard, it does not amount to bias. In fact, her majority opinion in J.D.B. v. North Carolina (7) refutes accusations of unfair bias by demonstrating how the use of empathy facilitated Sotomayor's ability to be influenced by other perspectives. By taking into account the real-world consequences of her decisions, and acknowledging the litigants' differing perspectives, Sotomayor assists the Court in reaching more evenhanded decisions.
FORMALISM V. EMPATHY IN ADJUDICATION
The Traditional View: Formalism
In the nineteenth century, the central legal theory was formalism. Under this paradigm, it was understood that "judges decided cases in mechanical, 'scientific' fashion." (8) Judges were likened to pharmacists, prescribing the appropriate rule to correct the legal issue presented. (9) The human element of judicial decisionmaking was altogether rejected; judges were merely the instrument through which relevant legal rules were applied to the particulars of a controversy.
Today, this view, which demands that judges abandon the lessons learned from life experiences, has softened slightly. Judge Cardozo was instrumental in the transformation of the prevailing legal theory by calling attention to the impracticability of such a model: "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (10) To put it simply, a judge cannot separate herself from the experiences that have shaped her, (11) nor should she have to.
Judge Cardozo's insights have become established in legal jurisprudence and have triggered various gradations of formalism. While there are those who still believe in "the myth of judge-as-oracle," (12) there are others who propose a quasi-formalist approach. In this method of adjudication, a judge is not a robot, but must "exercise good judgment in reaching decisions." (13) Judges are required to implement discretion when settling factual disputes and ambiguities in the law, (14) but "[e]mpathy has no place" in this process. (15) Therefore, a judge is expected to bear in mind her life experiences, but is prohibited from utilizing empathy. (16)
A rejection of empathy, however, can lead to devastating outcomes for the litigants involved in a case. The decision reached in Plessy v. Ferguson (17) serves as one example. (18) The Court in Plessy--which upheld institutionalized segregation--failed to take into account segregation's adverse effects on black Americans. By opining that racial segregation did not "destroy the legal equality of the two races, or reestablish a state of involuntary servitude [,]" (19) the Court did not appreciate the drastic consequences of segregation. The question of whether a law upholds human dignity can only be answered in the details of everyday life. In Plessy, the Court evidently chose to ignore experience, demonstrating a complete unwillingness to empathize with those subjected to discrimination. Indeed, the Court maintained that segregation made blacks feel inferior "solely because the colored race [chooses] to put that construction upon it." (20) This "ivory-towered analysis of the real world" (21) neglected the experience of a whole race, and consequently endorsed the subordination of many citizens.
An empathic response is one that involves the "psychological processes that make a person have feelings that are more congruent with another's situation than with his own situation." (22) According to Justice Brennan, empathy is attentiveness to the range of human experience as well as a "[s]ensitivity to one's intuitive and passionate responses." (23) It is a corollary of "the heart rather than the head" (24) that "puts [judges] in touch with the dreams and disappointments of those with whom they deal." (25) Thus, judicial empathy takes place when a judge enters the "skin" of another, making a litigant's experience part of the judge's experience. (26) This can occur either when a judge has personal understanding of the situation at hand, or when a judge, through a concerted effort, envisions the circumstances of another. (27) Consequently, empathy empowers the decisionmaker to give voice to the too often unheard by urging judges to imagine and attempt to understand the "outsider" perspective. (28)
Critics of empathy believe that such an approach defies the traditional creed that judges should be purely objective. They insist that an empathic connection prevents judges from adjudicating solely on the mandates of law. (29) In their view, if a judge identifies with a particular community of people, that judge's impartiality is undermined because she may feel accountable to that community. In reality, however, all "judges have had life experiences that could be said to affect [their] perception of the cases" before them. (30) For instance, Justice Alito admitted that his upbringing shapes his perspective of cases involving immigrants. (31) Nevertheless, these life experiences do not prohibit judges from impartially ruling on cases in which the issues or the facts are in some way indirectly related to their personal experiences. (32) Since empathic judges envision, comprehend, and contemplate each party's viewpoint, such a judge is more likely to reach a just decision by simply acknowledging the natural inclination to empathize with those who are most similar to oneself. (33) By identifying her affinities, a judge will be prompted to uncover other perspectives that were not immediately perceptible to her. Additionally, a sense of connection with a particular community should be encouraged because it motivates judges to accept responsibility for the consequences their decisions have on individuals.
While opponents of the empathic theory contend that employing empathy amounts to bias, the reality is that those who fail to view cases from each litigant's perspective are the least apt to adjudicate equitably. Indeed, "[i]t is those judges who are unable to understand the views and problems of others--who are unable to assess problems from any vantage point other than their own--who may not be up to the task of administering justice equally and impartially." (34) Empathy is a necessary component of good decisionmaking. In the words of Justice Brennan, a colloquy between head and heart is "not only an inevitable but a desirable part of the judicial process, an aspect more to be nurtured than feared." (35) It is desirable because it calls attention to the tangible human realities hanging in the balance.
The use of empathy should not be equated with judicial activism or with a view of the judge as an aimless "knight-errant." (36) It is not to be assumed that judges should disregard the law and decide cases based solely on a personal sense of justice. It is foolish, however, to imagine that one's conceptions of justice--formed by one's experiences--play no role in a judge's decisionmaking. It forms one of the many points of reference employed by judges. Each and every judge has experiences that influence the way she perceives the world. And a judge's view of the world will inevitably play a role in the choices she makes in those instances when she must decide how the facts of a case fit together, or how an existing rule applies in a new context. (37)
Empathy does not dictate an outcome or solve issues; it merely permits a judge to better understand the problems before her. Empathic adjudication provides a judge with the capacity to realize that, when balancing interests, justice cannot simply be the application of an abstract legal theory. Justice involves bearing in mind the social consequences of decisions. Such a view will help the United States judiciary avoid Plessy v. Ferguson-like outcomes.
THE SUPREME COURT'S MANIFESTATIONS OF EMPATHY (38)
Notwithstanding the opinion of those who oppose...