The great 2009 mass retreat from "empathy" was lamentable. Take away all the hyperbole and chest-heaving, and it's patently obvious that the ability to stand in someone else's shoes for a moment makes someone a better judge. If we can't in fact have a court that looks like America, we should seek a court that feels for America.
There may be no sitting justice who better exemplified the difference between diversity and empathy than Justice Stevens. He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner "wise Latina woman" when the case called for it, and we are all better for it. Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you're standing. That's part of what made him such a great justice, and it's a quality the president should bear in mind in selecting his replacement.
In the 2000 case of Illinois v. Wardlow, for example, the court had to decide whether the police had reasonable suspicion to stop a young black man solely because he took off at a run at the sight of a police officer. The five-justice majority, led by Chief Justice William Rehnquist, said, of course! Who else but a criminal turns and runs when he sees a cop? In a partial dissent, however, Justice Stevens offered a different vantage point: "Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent but, with or without justification, believes that contact with the police can itself be dangerous." This isn't "aberrant" behavior, Stevens added; this is common sense when you live in a world where every police officer isn't Officer Friendly. Stevens didn't know this because he grew up in the projects. It was enough that he cared to imagine what that life would be like for those who did.
Last year, after acting like a pack of giggling schoolboys during oral argument in Safford v. Redding, the challenge to a strip-search of a 13-year-old girl by school administrators, a majority of justices eventually concluded that the constitutional rights of Savana Redding were violated when she was strip-searched based on a groundless rumor that she had contraband Advil in her bra. Most of the justices, however, excused the school officials from legal liability, saying that they couldn't have known that what they did was unconstitutional. Justice Stevens, by contrast, made it clear even at oral argument that the strip-search was absurd, and also wrote separately from his colleagues, to point out that the school officials should have known better. "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," he said. Right—it takes not a constitutional scholar, but an adult with the empathy to understand that stripping a young girl to her underwear isn't the same as sending her to the locker room to change for gym class.
In Boy Scouts v. Dale, the 2000 case in which the court held 5-4 that the Boy Scouts could exclude homosexuals as Scout leaders, Justice Stevens again wrote in dissent. He argued that it is "interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes" that eventually changes stereotypical thinking. His point was that there is a limit to how much a person, even a brilliant person, can learn from his or her own life experience. What's striking about Justice Stevens' empathy is his unusual ability to imagine experiences that are clearly foreign to him; experiences that might strike others, especially of his generation and background, as strange or even frightening. This kind of empathy is worth more than all the demographic and racial diversity many of us seem desperate to bargain for. Let the career of John Paul Stevens stand as a reminder that we need justices who won't just look into the mirror, but instead will turn the mirror around to see who is reflected back.
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