It's not just liberals who play the empathy card.

It's not just liberals who play the empathy card.

It's not just liberals who play the empathy card.

The law, lawyers, and the court.
May 15 2009 3:56 PM

Crimes of Compassion

It's not just liberals who play the empathy card.

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And who can forget Dick Heller, the sympathetic Washington, D.C., security guard who won the Second Amendment right to keep a handgun in his Capitol Hill home in last year's blockbuster gun case? If you think the conservative advocacy groups didn't look long and hard for a plaintiff who was a lawful gun owner in a crime-riddled neighborhood who simply wanted to protect what was his, you don't know the Heller case. His life story had no bearing whatsoever on the constitutional dispute before the court. But if the lead plaintiff in Heller had been a crack dealer who'd shot a pregnant woman while robbing a liquor store, those constitutional issues might have looked a lot murkier to the court that ultimately ruled in his favor.

Borrowing from the litigation strategy employed by the NAACP in Brown v. Board of Education, conservatives have tracked down and capitalized on sympathetic plaintiffs to win cases and move the law in their favored direction. Commentator Pat Buchanan has gone so far as to suggest that as part of their rebranding effort, the Republican Party should consider becoming "the Party of Frank Ricci."


Now this is not the worst idea we've heard in recent months for re-conceiving the face of the Republican Party. And we want to be clear that there is nothing wrong with spotlighting your client's sympathetic life story; indeed, failing to do so could be considered a form of legal malpractice. But really, isn't it time for conservatives to turn off the phony outrage over judicial empathy, given the ways they've been successfully playing to it and capitalizing on it in recent years?

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white "victims" of affirmative action. It's a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out "sympathetic plaintiffs" for litigation precisely because they are attempting to appeal to some part of the court's lizard brain; the part that does more than mechanically apply the law to the case.

We all should want judges to be empathetic to the litigants before them—be they Frank Ricci, the city of New Haven, Susette Kelo, or Lilly Ledbetter. And the fact is that we all should also want judges to follow the text of the Constitution and the law, even while the realities and hardships of these real-world litigants play out in the background of the case. The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn't make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn't it high time we were all honest enough to admit it?

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.