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A Supreme Court Without Empathy Makes a Mockery of Justice

Los Angeles WAVE, News Analysis, Deborah Mathis Posted: Jun 02, 2009

What if he had said sympathy? What if the president had named that quality the ability to identify with another persons circumstances because you can imagine what it feels like instead of empathy the ability to identify with another persons circumstances because you know what it feels like?

Would that have made any difference in the debate raging over Supreme Court nominee Sonia Sotomayors sensibilities?

Not likely.

In all probability, the Sotomayer Attack Squad would be just as raging over a sympathetic justice as they are over an empathetic one since, according to the lambasters, a judge shouldnt feel for anything but the letter of the law and the Constitution.

Never mind that the absence of both qualities has been responsible for some of the most egregious, shameful and damaging rulings in the nations history.

The Supreme Courts inability to imagine the effect discrimination had on black minds and liberties is evident throughout the majority opinion in Plessy v. Ferguson, the 1896 ruling that rebuffed a black mans complaint against segregationist law and established the separate but equal sham as the law of the land for nearly six decades.

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority, wrote the unfeeling Court. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

In so many words, the Court was telling Homer Plessy that if not being allowed the same privileges, opportunities and access as white people made him feel slighted; or if he took inferior accommodations and a mountain of restrictions to mean that white people didnt think he was worthy of better, then that was Plessys problem.

There was no way for empathy to have intruded in those deliberations; all of the justices were white men, as all had been since the Court was established in 1789 and would continue to have until Thurgood Marshalls breakthrough in 1967 as the first-ever black justice.

It took men with heart to change course, slay Jim Crow and insert real justice into the American social structure. What, if not sympathetic minds, would have produced this profound observation in the landmark Brown v. Topeka Board of Education decision of 1954:

To separate [black school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.

A clinical, robotic consideration of the case might have taken the majority and, thereby the country in a different direction, as it had previously.

If we dont want the human beings on the highest court in the land to apply what they know about being human to the cases before them cases that represent real people in real predicaments then some computer programmer somewhere could get rich quick by developing software that swallows facts, matches them to the law and spits out a decision.

In that great and powerful institution, it has not been sympathy or empathy that has made trouble for the country. Its their absence that makes a mockery of justice.

Related Articles:

Sotomayor Falls in Journalism's Blind Spot

Asian Americans Weigh in on Hispanic Supreme Court Nominee

Have No Fear -- Underdog is Here

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