Passions and Emotions: NOMOS LIII

12. Equity over Empathy

315 12 EQUITY OVER EMPATHY BERNADETTE MEYLER In “The Anti-Empathic Turn,”1 Robin West inquires what accounts for the contemporary aversion to judicial empathy, an aversion represented not only by the political right’s response when President Obama extolled empathy but also by his own Supreme Court appointees’ avoidance of the term.2 West’s conclusion connects the shift away from empathy to the rise of a scientific model of judging. Under this new paradigm, social science replaces moral judgment, calculation of future utility supplants backward-looking assessments of circumstances, rules overshadow particularism, and judging becomes assimilated to legislation. Many features of this explanation are intuitively appealing and are borne out by examination of recent judicial rhetoric and practice . Nevertheless, I contend here that the set of dichotomies West propounds too readily conflates empathy with moral judgment and proper judicial reasoning with an assessment of actual, rather than hypothetical, factual scenarios. Furthermore, the binary pairs of empathy/scientism and particularism/rules do not always line up with each other in judicial practice. As a result, West’s generalizations about the effects of the anti-empathic turn on actual judicial approaches do not adhere across the board and, most notably, contrast with the realities of constitutional decision making under the Roberts Court, which has frequently prioritized the more particularized, “as-applied” form of decision making over “facial” constitutionally based challenges, without even paying lip 316 Bernadette Meyler service to empathy. By instead disaggregating empathy from equity and focusing on the latter rather than the former, one can recover a form of judicial reasoning that captures many of the virtues of moral judgment while insisting upon a less stark distinction between judging and legislating and between assessments of the past and the future. At least certain versions of the practice of equity can also furnish a check against one of the downsides of empathy —excessive identification with the individual who has suffered, rather than comprehension of his or her plight. From early in her piece, West associates empathy with the common law, asserting that “[i]t’s particularly easy to see why empathic excellence has been such a familiar judicial ideal in a commonlaw system such as ours or, for that matter, in any system in which judges reason, at least much of the time, by way of analogy.”3 The primary legal example she addresses, that of unconscionability in contract law, likewise arises from a common-law context. At the same time, however, as West acknowledges, much of the family of contract-law doctrines to which unconscionability belongs—which also includes “undue influence, bad faith, duress, and constructive fraud”—“derive[s] from rules of equity.”4 To the extent that common law and equity were merged pursuant to the 1938 Federal Rules of Civil Procedure—a development advocated for and anticipated by David Dudley Field’s partial procedural code in the nineteenth century—the distinction between the two today may be pragmatically irrelevant.5 Nevertheless, the echoes of equity call up the deep-seated jurisprudential differences that this mode of adjudication long maintained with the common law. Within sixteenth - and seventeenth-century England, the jurisprudence of equity claimed to remedy the rigors of the common law, which was itself perceived as precisely the kind of rigid and rule-bound system that West eschews. Recalling the roots of equity allows the excavation of a particularized and ethically situated jurisprudence somewhat distinct from the emotionally based one of empathy, although certainly not diametrically opposed to it. West’s concentration on the common law also leads to a generalization that elides important recent developments in constitutional decision making. As she claims, “Most mainstream legal scholars—including liberal, progressive, and critical legal scholars —concur that adjudication should be forward looking and gen- Equity over Empathy 317 eral and not limited to the particulars of the facts before it. Adjudication should be, in short, legislative in form and outlook.”6 This statement, while arguably perfectly applicable to contemporary decision making in common-law areas, conflicts to some extent with the Supreme Court’s embrace under Chief Justice Roberts of what David Franklin has recently called “the traditional model of constitutional adjudication.”7 The traditional model suggests that “as-applied” challenges, where the Court considers the constitutionality of a statute or administrative action with respect to the parties and facts before it, constitute the prototype of constitutional adjudication and that “facial” challenges, where a...