Must American Judges “Bench Their Rule-Of-Law Sapping Empathy?”


Chip Mellor, President and General Counsel of the Institute for Justice, penned an interesting piece in Forbes critiquing the school of so-called “legal realism,” which Mellor argues is exhibited today both in the courts, and in the Obama Administration. “Legal realists,” as described by Mellor,

believed that the law is subjective, inevitably influenced by the personal beliefs and values of individual judges. This meant any assertion that law could be objective and based on enduring principles was at best naive and at worst, led to entrenching the rich and powerful. Legal realists urged courts to recognize this and to seek outcomes based on the greatest social welfare.

This school of thought can be seen, Mellor argues, in President Obama’s promise to appoint judges who “stand up for social and economic justice” and have “empathy … to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

Mellor concludes:

Obviously, empathy is a virtue. But a judge who places his or her vision of social and economic justice above the rule of law may confer benefits on some litigants — ruling in their favor when the Constitution demands otherwise. For those in favor of a “living Constitution,” empathy and social consciousness — not the history or plain meaning of the Constitution — should dictate how a judge rules in any matter.

Who has it right? The “legal realists” or the “Constitutional originalists?” Mellor’s piece is an interesting contribution to the discussion.…