Are conservative Justices better than liberal Justices? Are empathetic liberal leaning Justices "activist judges?" Can't the same be said for Justices that believe the Constitution should be read in a minimalist "constructionist" kind of way? Of course. But the debate often times skips over these simple truths for the sake of sport. Conservative columnist David Brooks restates the obvious...
The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances.
It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain. People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.
Then the answer comes to you. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.
Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice.