Justice Benjamin Cardozo described how such inherent biases
can taint adjudication in his still-influential 1921 publication, The Nature of the Judicial Process. When
logic alone cannot decide a case, "[h]istory or custom or social utility or
some compelling sentiment of justice or sometimes perhaps a semi-intuitive
apprehension of the pervading spirit of our law must come to the rescue . . .
." But impeding that knowledge, Cardozo notes,
Deep below consciousness are other forces, the likes
and dislikes, the predilections and prejudices, the complex of instincts and
emotions and habits and convictions, which make the man, whether he be litigant
or judge.
Courts may decide constitutional cases more objectively
when they better understand the perspectives of relevant groups--overcoming subconscious
biases Cardozo says inhere in one's limited personal perspectives. As capacity
for empathy can increase with broader experience, diversity of backgrounds on
multi-judge tribunals, such as our Supreme Court, may enhance their collective capacity
to understand contemporary society. Thus, the racially-insulated, all-white majority
in Plessy v. Ferguson that upheld
racial separation on trains could not empathize with the late-nineteenth-century
experience of African Americans. By contrast, ability to empathize with women
generally likely influenced otherwise socially-conservative, states-rights-oriented
Justice O'Connor to vote to retain the core of Roe, in Planned Parenthood v.
Casey. And co-"swing voter" Kennedy may have learned from O'Connor's
perspective or his interactions with other women.
Finally, the practice of empathy requires both a knowledge of others and an intellectual capacity to identify with them. So even some with very-diverse experience do not think empathetically if disposed against it. Conversely, empathy does not require being, or knowing well, a racial minority, woman, et cetera. It may derive from other categories of experience, such as socio-economic background or professional work, or no direct experience at all--instead emerging from open-mindedness and a habit of learning about others.
Principles that constrain personal bias.
Though judicial discretion
is necessary, conservatively-oriented, limited by careful selection and judicial
independence, and improved by empathy; some subconscious bias still may color any
judge's perspective when the applicable law is gray. To counter that influence,
courts aspire to use neutral-tending principles, resistant to judges' individual
ideologies.
For instance, rather than philosophizing about human
dignity in the abstract, a process easily swayed by ideology, the Supreme Court
often ties recognition of fundamental rights to already-recognized legal
principles or social practice. In 1908, it began naming the specific,
unenumerated rights--not expressed in the 1788 text or amendments--that the
Fourteenth Amendment's general guarantee of "due process" should be interpreted
to restrict states from violating. Looking to many of the rights protected from
federal infringement in the Bill of Rights, the Court saw examples of rights it
deemed "fundamental to ordered liberty," such as freedom of expression, that informed
the undefined meaning of the "due process" restriction now imposed against
states. 1788 ideas on rights needing protection from federal majorities, codified
in the Bill of Rights, thus helped define abuses needing protection from states
over a century later, a method applied in McDonald's
recent holding on gun rights.
Identifying fundamental rights beyond Bill
of Rights examples, the Court has bound itself to neutral-tending, limited principles
of analogy and incrementalism. 1967's Griswold
v. Connecticut used analogy both to constitutional text and to other rights
already recognized in precedent, finding recognized privacy- and family-related
interests extended to protect married couples' contraceptive use. Incrementalism--recognizing
the Burkean value of continuity while evolving constitutional understanding--has
characterized the Court's approach to federal power. The Court expanded the
interpreted scope of commerce power in precedential steps that paralleled our national
economy's increased integration.
Our system of constitutional government depends
on judicial interpretation, though all agree that discretion must be
constrained. Every Supreme Court
justice--even the most conservative--uses sources and methods beyond the text of
the 1788 Constitution to decide some constitutional questions. Arguments for a
constitutional right to same-sex marriage before the Court thus rely not only
on text such as the Equal Protection and Due Process clauses, but also on existing,
analogous precedent described below. Empathy may aid the Court the Court's objectivity
in assessing the gay litigants' claims. And other rights recognized in
precedent provide a foundation on which the Court could frame recognition of a
right to same-sex marriage as an incremental rather than radical step.
V. Debatable Questions Remaining after
Purging the Myths
Grasping originalism's
limits and judicial discretion's necessity does not end debate but brings focus
to challenging, real disputes. The whole-constitution approach, alone, does not
decide but only better frames arguments about the existence and scope of such unenumerated
rights as abortion and same-sex marriage. And legitimate arguments remain on
questions of federal power, including the legislative power authorizing the
Affordable Care Act (ACA).
Unenumerated,
Inalienable Rights
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