The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [76]
In such a homogeneous group, a justice’s ability to imagine and appreciate the situation of someone from a different background or in a different situation is essential. This kind of empathy is not a feeling but a method of thought, a habit of questioning one’s perspective long enough to “check one’s work.” Empathy also allows the group to avoid the “herding” that accentuates the flaws of group decision making. It is critical not because of the need for compassion or sympathy, but because of its role in producing the only thing the Court is supposed to produce: good decisions. It protects all of us.
In a world in which law can never capture the complexity of human beings, intellectual empathy is the only way that the stories the law requires will produce fair outcomes, rather than outcomes that are receptacles for the bias and prejudice of judges and juries.
Obama was right to emphasize empathy in discussing David Souter, because Souter embodied the kind of empathy I am defining here. He is a Harvard- and Oxford-educated New England Republican, but his contributions were often in the understanding of people completely unlike him. Early in his career as a justice, the Court heard a case about a down-on-his-luck African American man named Curtis Kyles, who had been on death row in Louisiana for almost a decade.22 Kyles had been convicted of the murder of a white woman in a supermarket parking lot, for her groceries and her red Ford LTD. The evidence against him looked strong. His appearance matched some eyewitness accounts, and he had been found with a revolver, which turned out to be the murder weapon, hidden in his apartment. A man named Beanie also claimed that Kyles had sold him the victim’s LTD the day after the murder.
Kyles was as different from Souter as any party to a Supreme Court case I know about. Notwithstanding that fact, and despite Souter’s experience as a state prosecutor, Souter pored over the record of the case, which increasingly gave him the sense that something was not right. The evidence against Kyles was not nearly as strong as the police had made out, mostly because the police had failed to give the defense some eyewitness descriptions that didn’t match Kyles. They had also failed to disclose their chummy relationship with Beanie, who should also have been a suspect since he matched some eyewitness descriptions and had a history of criminal activity around the grocery store in question.
Justice Souter’s attention to detail, and his openness to seeing the facts from vantage points distinct from the accepted official version, allowed him to understand that the evidence did not point unequivocally to Kyles. Beanie should have been a suspect too, but the police took a “remarkably uncritical attitude” toward him, perhaps because of his history as an informant.
Souter wrote a detailed and tightly argued opinion arguing that Kyles deserved a new trial, not because he believed Kyles was innocent but because the police had hidden evidence that might have created a reasonable doubt as to his guilt. He won four other votes on the Court, meaning that Kyles won a new trial by a vote of five to four. It was the first time Kyles had won any of his cases or appeals in a decade of state and federal court proceedings.
Souter’s attention to detail in the case was striking. He could have taken it lightly or not thought to challenge the arguments of the state officials, with whom he might have identified. His contribution was not feeling a certain way, but thinking differently from what his background might have suggested. This kind of empathy did not lead him astray or make him “activist,” but helped him see the facts in a way that no other court had seen them. It also meant that the Court could articulate an important