Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking – Article by Jill Weinberg & Laura Beth Nielsen

From Volume 85, Number 2 (January 2012)

There are moments when the law is not enough.

In Virginia v. Black, a normally silent Justice Clarence Thomas interjected with what one commentator called a “Luke-I-am-you-father” voice. The case involved a First Amendment challenge to a Virginia law that prohibited cross burning. During a deputy U.S. solicitor general’s oral argument in favor of the law, Justice Thomas condemned him for not going far enough. Justice Thomas, who grew up in the segregated South and was the only black Justice on the bench, posed a very potent question: “Aren’t you understating the . . . effects of . . . the burning cross” given that crosses were “symbol[s] of [a] reign of terror” during the “100 years of lynching . . . in the South?” He continued, “I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish.”

Similarly, during the Senate Judiciary Committee hearing on the nomination of then-nominee, now-Justice Sonia Sotomayor, Senator Jeff Sessions challenged her prior representations that she could be an impartial judge by quoting remarks she made the day before: “You have repeatedly made this statement: ‘I accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.’” Without hesitation, Sotomayor responded, “the point that I was making was that our life experiences do permit us to see some facts and understand them more easily than others.” Ultimately, Senator Sessions made his stance clear that empathy and judicial decisionmaking can and should be mutually exclusive, saying, “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth, it is more akin to politics, and politics has no place in the courtroom.”



Trading Votes for Reasoning: Covering in Judicial Opinions – Article by Stephen J. Choi & G. Mitu Gulati

From Volume 81, Number 4 (May 2008)

Studies report that judges who are on panels with at least one other judge of a different political party (a “mixed panel”) tend to moderate their votes, particularly when cases involve politically charged subject matter. We examine whether this moderation in voting is the product of bargaining among mixed panel judges, where authoring judges, who might otherwise face a dissenting vote (or find themselves in dissent), trade their votes for the ability to craft the reasoning in a unanimous majority opinion closer to their own policy preferences and thereby affect the opinion’s precedential value. Using citation patterns within opinions as a proxy for how judges reason, we report that authoring judges on mixed panels do not moderate their reasoning when it comes to opinions relating to salient subject matter areas. Partisan reasoning in top salient areas is also higher when the authoring judges have more bargaining leverage over opposite party judges on the same panel. Finally, partisan reasoning in top salient areas is greatest among authoring judges who have the most skill at writing influential opinions. The foregoing is consistent with the theory that judges engage in covering: moderating their voting when associated with an opposite party judge on the same panel, a highly visible activity, but adjusting the reasoning in the opinion to tilt the decision back toward the authoring judge’s own preferred ideological position, a less visible activity, done under the cover of the more visible, moderated vote.