By Eric Segall
Last week on my podcast Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for one of the parties to deal with losing the case. Such sensitivity also provides a role modeling exercise for people reading the decisions.
Empathy when judging does not mean deciding a case in a way inconsistent with the law but rather a way for judges to show that the litigants have at least been heard. There is also a wide-ranging literature on the role of emotion and empathy in legal reasoning but this blog post is not about that.
There can be no doubt that Justice Clarence Thomas, since his confirmation at least, has displayed decency and empathy towards others in his personal dealings. He famously devotes considerable time to students and faculty when he visits law schools, and more than most of the other Justices, he hires law clerks outside the several elite schools that provide most Supreme Court clerks. Recently, a visually disabled clerk for Thomas wrote with great passion about how kind he was when her grandmother died and how he told her family comes first, work second. Virtually everyone I have ever asked gushes about their interactions with Justice Thomas and how personable and present he is when visiting with other people. As one writer observed:
The first thing to know about Clarence Thomas is that everybody at the Supreme Court loves him...Thomas cultivates a jovial presence in the building’s austere marble hallways. Unlike most of his colleagues, he learns everyone’s name, from the janitors to each justice’s law clerks. He makes fast friends at work, at ball games, and at car races, and invites people to his chambers, where the conversations last for hours. Thomas’s booming laugh fills the corridors. He passes silly notes on the bench. As the legal analyst Jeffrey Toobin wrote in 2007, with his 'effusive good nature,' Thomas is 'universally adored.'
Yet, the same person who wrote the above also said that Thomas's "buoyancy marks a man whose career as a judge is a study in brutalism." There can also be no doubt that Justice Thomas does not display empathy and decency when deciding cases and writing judicial opinions. In fact, it is likely he feels that empathy and decency have no place in his courtroom.