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Empathy and the bench: It’s all about the spirit of the law

Empathy and law, life experience and the judge’s bench. Are they oil and water, or are they the necessary complements that make for a greater approximation of justice?

The question has been raised whether Judge Sonia Sotomayor’s experience and a sense of empathy will impair her ability to render judicial decisions based solely on the law. Those who insist on keeping her Latina experience out of judicial considerations learned well what law-school professors tell their first-year students to dampen any idealistic expectations: that the law is about the law, not about justice. 

There are judges who see only the letter of the law, and there are judges who see the spirit of the law. If American jurisprudence had paid attention only to the letter of the law, Sonia Sotomayor would not be able to vote, let alone serve as a member of the bar or the bench. She would be cleaning Supreme Court and Senate restrooms. Without empathy on the benches of local and federal courts, the United States as we now know it would never have been. “All men are created equal” would still mean that all white men with property are created equal. Males without property don’t count and don’t vote. Women are not the equal of men; they don’t vote. People of color are not human; they’re property.”

If the courts had relied solely on the criteria of original intent and precedent, the original definitions would never have changed. The courts would have overruled every legislative change as unconstitutional.

It starts at the local level
It makes a world of difference who’s sitting on the bench of the Supreme Court. But it starts at the local level where ordinary people stand their ground, make their cases for justice, and where judges make decisions. Take the case of Judge Neil Riley, for instance.  It happened 40 years ago in Minneapolis Municipal Court.

Four American Indian men had been charged with disorderly conduct, disturbing the peace, public intoxication, resisting arrest and profanity in public. The men had been arrested at The Coral, an Indian bar on Franklin Avenue near Bloomington in South Minneapolis. It was a long-standing practice of the Minneapolis Police Department to pull the paddy wagon up to The Coral, haul people out of the bar, handcuff them, chain them to the light post on the street, shove them into the paddy wagon, and rough them up on the way to jail. No one had ever dared to challenge the practice in court.

Doug Hall, the late legendary attorney who subsequently co-founded the Legal Rights Center, tells the rest of the story. 

“These four men … decided that they wanted to stand trial.  … [W]e drew Neil Riley as the judge. I think we tried [the case] for over a day.

“One of the things we tried to do in Municipal Court was to make the trial function like a District Court case. The system was to fill up the bull pen, and then bring all the accused before the judge at once. Justice was usually dispensed quickly. But we insisted that lawyers sit at the counsel table, that a witness stand be used, and that it run like a court. We were cutting into the spare time of the judge and the city attorney. We laid out how these guys had been victimized. Riley found them not guilty on all six charges against them, except one, and that was profanity in public. Judge Riley fined each of them $25 and then suspended the sentence!” (“Heroes Among Us,” Peter Heegaard, Nordin Press)

Empathy led to the spirit of the law
Judge Riley and Doug Hall were white men whose empathy filled them with the spirit of the law.  They changed things on the streets of Minneapolis, where no American Indian had dared to fight for his rights; they changed an assembly line of presumed guilt into a court of law where justice hung in the balance.

If judicial decisions are made based solely on original intent and legal precedent, none of this would have changed. It was only when people fought to overturn the exclusive privileges of a white male landed gentry that the original intent and legal precedents were superseded by wiser interpretations of legislators and judges whose empathy and life experience shone the light of a higher law on the injustice of old intents and precedents.

Go for it, Sonia! Don’t let the naysayers tell you to leave your experience outside the Senate hearing room or the Supreme Court. Let the law reflect a greater approximation of justice that was once unimaginable — not only to the Founding Fathers but in a Municipal Court just 40 years ago. 

The Rev. Gordon C. Stewart is Pastor of Shepherd of the Hill Presbyterian Church in Chaska. He is the moderator of Shepherd of the Hill Dialogues, and former executive director of the Legal Rights Center.

Comments (8)

  1. Submitted by Thomas Swift on 06/03/2009 - 12:00 pm.

    If empathy is a trait we wish to apply to the application of the law, would a devout Roman Catholic, or Evangelical protestant judge be encouraged to apply any empathy his religious experiences might bring to the case of Scott Roeder?

    Or are we just limiting our embrace of “diversity” to race and gender?

  2. Submitted by Greg Kapphahn on 06/03/2009 - 04:56 pm.

    Oh, My! Tom sets up an outrageous hypothetical straw man, then insists, in the name of all that’s just and holy we HAVE to knock it down! O’Rile ’emup must be so proud of his disciples!


  3. Submitted by Gloria Lindberg on 06/03/2009 - 07:53 pm.

    Until reading this commentary, neither my husband or I had consciously thought of empathy as the catalyst for change in a positive direction. Without empathy, change occurs but not always positively. Talk about practical application of the Golden Rule!”

  4. Submitted by Thomas Swift on 06/04/2009 - 10:25 am.

    Shorter Kapphahn: “I got nothin'”

  5. Submitted by James Hamilton on 06/04/2009 - 08:37 pm.

    Our legal system is intended to do two things, whether in civil or criminal cases. First, apply the law to the facts and determine who the law says should win.

    Judges have a certain amount of discretion in how they conduct their courtrooms but this is the bottom line. That discretion may well be affected by a judge’s empathy for one party or another. That’s one of the reasons why an abuse of discretion is grounds for reversal on appeal.

    Once we’ve determined who the law says should win, we face the question of what should be done to rectify the situation. In a civil matter, that may mean how much money is to be paid, who is to have custody of a child, or whether a person should be permitted to continue an activity or to do so only under certain constraints. In a criminal matter, the question is what punishment is appropriate.

    Empathy does and should play a role in fashioning remedies in both cases. We don’t cut off the hand of a person who negligently causes the loss of another’s. We don’t sentence a hungry man to life imprisonment for stealing a loaf of bread. We don’t send a 14 yeat-old car thief to a maximum security adult facility. We understand, to some extent, the circumstances under which the accident occurred or the crime was committed. We empathize.

    There’s no reason the same should not be true on an appellate level, provided that we are first concerned with what the law provides and only then with tempering (or enhancing) the result.

  6. Submitted by Skip on 06/05/2009 - 07:07 pm.

    “Spirit of the law” is just a euphemism for circumventing any law that gets in the way of the desired result. Law are legitimately changed by statutory revision or constitutional amendment, not willy nilly decisions by lawyers in black robes.

    Maybe the good Reverend interprets scripture as the spirit moves him, but the law demands more.

  7. Submitted by Carol Cooper on 06/06/2009 - 09:29 pm.

    This article throws around completely unsupported statements about how the law has evolved in this country, while completely missing the real issue here: empathy with whom?
    For more, see

  8. Submitted by Stephen Hill on 06/07/2009 - 10:49 pm.

    I must agree that the spirit of the law is every bit as important as the letter of the law, except that I would call it “substantial justice” rather than the spirit of the law. Years ago when I was a part time judicial arbitrator, I underwent a vetting process and several interviews and the underlying theme always was the concept of substantial justice. Since our system, governmental and judicial, depends in large part upon public respect and acceptence, sunstantial justice must appear to have been done in the decision making process. With rare exceptions, one can almost always find “law” on both sides of every issue, so in reality what is left. A retired Dean of a midwestern law school and the Chief Justice of the New York State Court of Appeals, Charles Desmond, both told me the same thing. In the overwhelming majority of cases, Judges reach a decision based upon their personal concept of fairness and justice and then find the law to support their position. Justice Alitto and candidate Sotomayor are both correct. A Judge, llke any other person is the sum total of their learning and life experiences and each factor goes into the decision making process, as well it should in this writer’s estimation.

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