A recipe for lawlessness

It’s a fundamental principle of our legal system that cases are to be decided based on the facts and the law, not one’s likes, dislikes, and sympathies. The rule of law depends on this principle, because people’s likes, dislikes, and sympathies are idiosyncratic and thus unpredictable. And when legal outcomes become too unpredictable, the question of how to comply with the law becomes anyone’s guess.

This is why jurors typically are instructed by judges not to allow their sympathies to influence their verdicts. Here, for example, is a portion of an instruction contained in the Ninth Circuit Manual of Model Jury Instructions, Civil, 3.1 (2001):

You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.

The instruction does not state that if the evidence is ambiguous or the case is close, the juror should allow his or her sympathy to take over. Jurors might well do this, but they are not instructed to; rather they are instructed not to.

But Obama wants Supreme Court Justices who, in close cases at a minimum, will allow their sympathies (he says “empathy”) to play a major role. And he wants those sympathies to run in favor of those who occupy stations in life that he finds appealing. For example, as the Washington Post reports, Obama wants a Justice who would have sided with Lilly Ledbetter because (in Obama’s words) she was “out there trying to raise a family, and [was] being treated unfairly.” Under these circumstances, says our president, “the court has to stand up if nobody else will.” This is true whether or not, on the best reading of the law and the facts, Ledbetter’s suit was procedurally barred by the applicable law.

Thus for Barack Obama the result on the purely procedural issue before the Court in Ledbetter’s case should have depended on (a) whether she was out there trying to raise a family and being treated unfairly and (b) whether someone else besides the Supreme Court Justices would stand up for her (Congress stood up for people like her by changing the legal provision in question, but it was too late to help Ledbetter — all she got was her inaugural ball dance with Obama).

This is a recipe for lawlessness from a president whose lawlessness is already on display in other contexts.

UPDATE: My argument doesn’t depend on the fact that, after she lost her case, Ledbetter lied about the facts to make herself appear more sympathetic. However, this fact points to an additional problem with “empathy” as a basis for deciding legal issues; it increases the likelihood that parties will deceive judges.


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