I was reading this article in The New York Times today about the qualities that President Obama is looking for in a Supreme Court nominee. The focus of the article is on “empathy” and whether it is appropriate for presidents to seek this quality or not. The gist of the concern critics have about “empathy” is that justices should not let their personal biases influence their decisions. “Empathetic” justices, critics maintain, might end up “twisting decisions to reach a desired outcome rather than the one mandated by the letter of the law.”
We are so steeped in myths about the Court that even the Times is suggesting that adherence to “the letter of the law” is a reasonable quality to seek in a Supreme Court nominee. But the idea that case outcomes are “mandated” at the Supreme Court level—or that they can be—is not something that political scientists take very seriously.
This is not to say that Supreme Court justices do not care about legal values, like maintaining consistency in the law or making good legal policy. Certainly justices can exhibit a respect for precedent and make law that harmonizes with the holdings of previous decisions.
The myth is in assuming that the “rule of law” mandates particular case outcomes, at least at the Supreme Court level. At the lower court level, this might be so, but the majority of cases that Supreme Court justices decide have already divided the lower courts. There are rarely “right” answers to these legal questions because the cases present genuine legal uncertainties. In the end, a justice must make a choice.
Instead of worrying about whether justices will maintain the “letter of the law,” we should be asking whether nominees to the Supreme Court will make decisions that reflect our values. Every justice will make choices that have profound policy implications. Now is our opportunity to influence the choices that our justices, inevitably, must make.