Justice Tempered With MurphyDean William Michael Treanor in Forbes, August 06, 2009
With Justice Sotomayor now confirmed, one lesson from her hearings is clear: There is a broad, surprising, consensus that empathy is not a desirable attribute for a Supreme Court justice. While President Obama had said that he wanted a justice with empathy, Judge Sotomayor was repeatedly challenged during her confirmation hearings as to whether she would be empathic when judging cases. She said that she would not, stating "[I] wouldn't approach the issue of judging in the way the president does."
But use of empathy by justices on the Court is certainly not unprecedented, and empathy has produced wise results in circumstances in which conventional judging, focusing on precedent and neutral decision-making, has led to bad results. The power of empathy is appropriately demonstrated not by abstract reasoning, but by concrete examples. There may be no better illustration of the importance of empathy than in the career of Justice Frank Murphy.
Justice Murphy was in some ways the Justice Sotomayor of his day. As his clerk John H. Pickering wrote, Justice Murphy "knew about discrimination first-hand. He experienced it growing up as an Irish-Catholic lad in a small Michigan town, and he was a lifetime foe of discrimination in all of its ugly forms." A former judge, governor of Michigan and U.S. attorney general who had gained widespread attention for his commitment to civil rights and the cause of workers, he was nominated to the Court by Franklin Roosevelt, and he was the last Catholic nominated to the Court by a Democratic president until Judge Sotomayor was nominated this year.
During his tenure on the Court, Justice Murphy frequently opposed fellow Roosevelt appointee, Justice Felix Frankfurter. Frankfurter, a former Harvard Law professor, championed judicial restraint and judicial craftsmanship. Murphy employed a judicial philosophy in which concerns of justice and fairness were central. Frankfurter savagely criticized Murphy behind closed doors, and his critics labeled Murphy's approach, "Justice tempered with Murphy."
Justice Murphy is today largely forgotten, and Justice Frankfurter has attained iconic status. But on the great cases of their day, it was Murphy who was far more often on the side of history.
When the United States government placed Japanese Americans in internment camps, Justice Frankfurter voted in Korematsu to uphold the action. Justice Murphy dissented, writing, "Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is ... utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States."
In West Virginia State Board of Education v. Barnette, the Court considered a West Virginia Board of Education rule that provided for the expulsion of students who would not pledge allegiance to the flag, even when their refusal was based on religious beliefs. Justice Frankfurter concluded that the action was constitutional. Justice Murphy, and a majority of the Court, determined that the rule was unconstitutional.
Justice Murphy wrote, "Any spark of love for country which may be generated in a child or his associates by forcing him to make what is to him an empty gesture and recite words wrung from him contrary to his religious beliefs is overshadowed by the desirability of preserving freedom of conscience to the full. It is in that freedom and the example of persuasion, not in force and compulsion, that the real unity of America lies."
In the case In re Yamashita, the Court, with Justice Frankfurter in the majority, upheld the Japanese General Yamashita's conviction by a congressionally created military commission. In dissent, Murphy argued that the proceedings against General Yamashita had violated due process. "[A]n uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit," he sadly observed.
Murphy's empathy informed his opinions, and, again and again, history vindicated him. He was not the most frequent dissenter on the Court, but he was the Justice whose dissents were most frequently adopted by the Court in subsequent majority opinions. At the end of his career, Justice William O. Douglas observed that, if he could redo his judicial career, he would follow Frankfurter less and Murphy more.
As the strong vote in favor of Justice Sotomayor's confirmation illustrates, there is wide recognition of the fact that a great Supreme Court needs justices who bring a diversity of life experiences to their decision-making. But a great Supreme Court also needs justices who bring a range of analytic perspectives. Judicial decision-making functions best with a dialogue of different perspectives, a dialogue in which competing perspectives challenge each other.
A great Supreme Court should have justices like Frankfurter, people who are superb practitioners of the judicial craft, who champion respect for precedent, and who recognize the importance of deference to majority decision-making. At the same time, as Murphy's career shows, Justices who are able to understand the problems that the oppressed and the despised confront can often see things that justices who rigorously apply legal doctrine might miss. If a great Supreme Court needs justices like Frankfurter, it also needs justices like Murphy.
A great Supreme Court should have room for justices with empathy.