Almost exactly two years ago, Americans went briefly but powerfully insane when President Obama had the temerity to suggest that a replacement for the retiring Justice David Souter might embody the quality of "empathy."As Obama explained it at the time, he wanted someone "who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." Obama's foes seized on this language to insist that "empathy" was code for twisting the law to help some but not others. It stood for lawless, emotional liberal "activism."
The campaign against the word empathy was successful, in its way. (The word all but dropped out of the president's judicial vernacular when he introduced the country to his next Supreme Court nominee only a year later.) But in a case decided by a 5-4 margin this morning, Obama's justices showed that empathy for the vulnerable isn't merely a choice but a necessity. And it's fitting that the justice who explains that is Obama's empathy poster child and Souter's replacement: Justice Sonia Sotomayor.
The details of the case are straightforward. A 13-year-old middle-schooler from Chapel Hill, N.C., known only as J.D.B., was removed from his classroom by a police officer in uniform, escorted to a conference room, and questioned behind closed doors by two cops and school officials for at least half an hour. His legal custodian, his grandmother, was never notified, nor was he informed of his Miranda rights, or his right to leave the room. After being threatened with a search of his home and juvenile detention, J.D.B. confessed to some break-ins. Only then did the police let J.D.B. know that he could refuse to answer questions and was free to leave. The police searched his home, found stolen goods, and charged the youth with breaking and entering and larceny. His public defender moved to suppress his confession, and the evidence resulting from it, on the grounds that J.D.B. had been interrogated in a custodial setting without Miranda warnings. The trial judge denied the motion, the boy was declared a delinquent, and a divided panel of the North Carolina Court of Appeals affirmed the ruling.
The question for the Supreme Court was a simple one: Should a suspect's age factor into an inquiry into whether he was in custody for the purposes of a Mirandawarning? In the famous Miranda v. Arizona case in 1966, the Supreme Court established that suspects in custody must be warned of their constitutional rights, including the right to remain silent. The court has outlined a two-part test to determine whether a suspect is "in custody" for Miranda purposes: "what were the circumstances surrounding the interrogation; and … given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave."
This doesn't require a subjective look into what the suspect actually believed. It just means asking what a reasonable person would have thought in a similar situation.
Sotomayor, writing for the court's four liberals and Justice Anthony Kennedy, explained that the pressure of a custodial interrogation is "so immense that it 'can induce a frighteningly high percentage of people to confess to crimes they never committed' " and referred to studies showing that youngsters are particularly susceptible to such pressure. Therefore, she explains, "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go" and that—empathy alert!—"such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge."
Sotomayor points out that the law has no trouble setting distinct standards for children and adults based on the idea that events that "would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens." And she notes that "these observations restate what 'any parent knows'—indeed, what any person knows—about children generally."
Sotomayor doubles down on the need to show special solicitude to the suspect's age by mocking the absurdity of a judge trying her level best to imagine how "a reasonable adult [might] understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to 'do the right thing'; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker." She concludes that empathy is hardly impossible to muster in these settings: "Just as police officers are competent to account for other objective circumstances that are a matter of degree such as the length of questioning or the number of officers present, so too are they competent to evaluate the effect of relative age. … The same is true of judges, including those whose childhoods have long since passed. … In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child's age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult."
Justice Samuel Alito, dissenting on behalf of the court's conservative wing, eschews the idea that judges and police officers could ever substitute their judgment for that of a child. He faults Sotomayor for turning Miranda's "one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures." He worries that until today a "core virtue" of Miranda has been the clarity and precision of its guidance to "police and courts." Alito also has "little doubt that today's decision will soon be cited by defendants—and perhaps by prosecutors as well—for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus."
But what seems to bother Alito most is that the rule requiring that age be taken into account for purposes of a Miranda inquiry "will be hard for the police to follow, and it will be hard for judges to apply." Alito feels acutely for the "60-year-old judge attempting to make a custody determination through the eyes of a hypothetical, average 15-year-old." He notes that "forty-five years of personal experience and societal change separate this judge from the days when he or she was 15 years old. And this judge may or may not have been an average 15-year-old." How, he wonders, can a 60-year-old judge do it? (And how, he might have asked—and soon we may learn whether he did ask— can a judge know the effects of violent video games on a 15-year-old boy if he can't even remember being an average 15-year-old himself?)
In the end, it's not so much that Alito has no empathy for teenagers in coercive interrogation settings. He does. He simply empathizes more with the police, the judges, and the legal purity of the Miranda rule—in his words, the "clarity and administrability that have long been recognized as 'principal advantages' of Miranda's prophylactic requirements." Alito can't imagine a 60-year-old judge in the shoes of a teen. But he slides into the boots of a police officer without a pinch.
The conservative war on Obama's "empathy standard" was a fallacy: that judging was a choice between identifying with the weak and downtrodden or zealously following the law. The truth is that different judges empathize with different parties, players, and ideas—and they craft the law to suit.
Alito, in despairing at the prospect of a judge imagining himself to be 15 again, gives voice to the idea that it's insane for a judge to even try to empathize. Sotomayor, meanwhile, signals an understanding that "reasonable people" and "reasonable children" are fundamentally different beings, and that it is no sin for the courts to acknowledge that truth—particularly since so few 13-year-olds sit on the federal bench. Sotomayor reminds us that it isn't wrong for judges to imagine themselves in lives they don't lead, or interrogation rooms they've never known. She reminds us that courts at their best make these leaps of feeling because it's a part of the job.
In an essay about the benefits of judicial empathy, Joel K. Goldstein argues that one of the court's finest achievements, Brown v. Board of Education, struck down racially segregated education solely because all nine justices were able to imagine that it led to African-American children having a "feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." The saddest part of Alito's dissent isn't that he can't imagine being a 13-year-old boy. It's that he thinks it's folly even to try.