The Instigator
RoyLatham
Pro (for)
Losing
23 Points
The Contender
tribefan011
Con (against)
Winning
51 Points

Empathy should have no role in judging appeals

Do you like this debate?NoYes+3
Add this debate to Google Add this debate to Delicious Add this debate to FaceBook Add this debate to Digg  
Post Voting Period
The voting period for this debate has ended.
after 12 votes the winner is...
tribefan011
Voting Style: Open Point System: 7 Point
Started: 6/5/2009 Category: Society
Updated: 7 years ago Status: Post Voting Period
Viewed: 3,349 times Debate No: 8530
Debate Rounds (3)
Comments (17)
Votes (12)

 

RoyLatham

Pro

Empathy is "the intellectual identification of the thoughts, feelings, or state of another person." http://en.wiktionary.org... or, similarly, "Identification with and understanding of another's situation, feelings, and motives. See synonyms at pity." http://www.answers.com...

For this debate, "judging" is taken in the legal sense of performing the duties of a judge. A judge is "A public official who hears and decides cases brought before a court of law. ... A judge is one capable of making rational, dispassionate, and wise decisions" http://www.answers.com... The context of this debate is the legal system of the United States, and in particular the Federal judiciary.

"... appeals courts review decisions of trial courts for errors of law. Accordingly, an appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties." http://en.wikipedia.org...

We should want judges who reach decisions solely based upon the law, not feelings. Only then can citizens be assured a fair trial under the laws as written.

A judge may be empathetic, but empathy should play no role in judging, which is to say it should not affect the decision rendered by the judge.
tribefan011

Con

My argument is going to primarily focus on your claim that we should want judge who reach decisions solely based upon the law, not feelings.

About 10,000 cases are submitted to the Supreme Court of the United States each year. The Supreme Court only hears 100 cases on average per year, or this has been the case recently. "Formal written opinions are delivered in 80 to 90 cases" ( http://www.supremecourtus.gov... ). I think it's abundantly clear that it's very difficult for a case to make it to the Supreme Court.

Most of the cases that make it to the Supreme Court rarely involve a clear right or wrong answer. Many rulings are complex. Some have little basis in law. Some have a lot of basis in law. But it's obvious that the Constitution does not address every issue that comes to the Supreme Court. The Constitution also includes phrases, which will be interpreted differently by different people, like "due process of law", "just compensation", "cruel and unusual punishment", or "equal protection of the law", just to give a few examples. These phrases are not explicitly defined. As you and I both know, Marbury v. Madison set the precedent for judicial review. As a result, the Supreme Court has reviewed many laws over the years and ruled over their constitutionality. Over the years, there have been many close decisions. Just last year, D.C. v. Heller was decided 5-4. Boumediene v. Bush was decided 5-4. I can go on with other close decisions. This observation gives heavy support to the claim that most cases rarely involve a clear right or wrong answer because the Supreme Court is often split.

Justices should be impartial, but this does not mean they do not bring views to the court. As reflected in the close decisions, 5 of the 9 Supreme Court justices usually wind up on the "liberal" side and 4 usually wind up on the "conservative" side. Their interpretations differ. The interpretation of the broad language in the Constitution reflects the values of the judges, as there isn't always a definitive right and wrong.

The language "cruel and unusual punishment" is very broad and hurts your argument. There is no standard for "cruel and unusual punishment". There's no specific description of what makes up cruel or unusual punishment in our laws or in our Constitution. The decisions in Hudson v. McMillian (1992), Hope v. Pelzer (2002), Trop v. Dulles (1958), Ford v. Wainwright (1986), and Atkins v. Virginia (2002) were not based upon "the law" as you state. They were based on judge's interpretations of those laws. There is no law that defines what constitutes as "cruel and unusual punishment". That is left up to judge's opinions and values. Now this is not my argument for empathy yet. This is my argument to refute your assertion that all decisions should be based solely upon the law. That's idealist and it's also impossible. There is rarely a clear right and wrong side in a lawsuit that goes before the Supreme Court. There are varying interpretations to laws. There is unclear and broad language in our Constitution and laws.

Too much empathy can distort decisions and doesn't belong in every case. But it is very important in many cases. Empathy just has to be used carefully in decisions.

The fact that many decisions cannot be reached solely based on laws and are often based on interpretation brings other values into consideration. Justices' experiences and values will effect their interpretations and application of different laws.

In advocating for empathy, I will use the argument that has consistently been used in this debate. A case before the Supreme Court this year involves a former student of Safford Middle School in Safford, Arizona. Her name is Savana Redding. In 2003, she was taken out of class by the vice principal. The vice principal had found prescription-strength ibuprofen on one of Savana's classmates earlier in the day. The classmate blamed Redding for them. Redding claimed she didn't know anything about the bills and hadn't seen them. She was ordered to strip to her underwear and bra in front of an administrative assistant and the school nurse. She was also ordered to pull her bra and panties away from her body. The search produced absolutely nothing. No other students suspected of involvement were ordered to this search. There is no black and white decision in this case. The Supreme Court is now reviewing the 9th Circuit Court's ruling that the search was unconstitutional. When reviewing the case, I certainly want the justices of the Supreme Court to empathize with Savana and think what it would be like to be stripped to her bra and underwear. However, I certainly want the justices of the Supreme Court to also empathize with the school and think about the security of a school. Justices influence each other. Having justices who empathize with both sides will influence other justices and improve the discourse.

Again, there is no clear right and wrong in this case. The word "unreasonable" in the Fourth Amendment puts this decision up to personal interpretation. It's quite clear that one can't rule solely based on the law in this case. The word "unreasonable" asks for individual thought. It asks for careful consideration.

I can go more in depth in the following rounds. But I just think the claim that empathy should play no role in judging is ridiculous. I find it very hard to imagine wanting a judge without empathy. I ask you not to confuse emotion with empathy as the Republicans have been doing. That is far too basic and frankly retards the debate.

In closing, I'll make it clear. Empathy is not sympathy. Empathy is merely identifying with the thoughts, feelings, and state of another person, as you stated. Empathy is looking at the world through the shoes of another person. It is important when considering the person who was cruelly or unjustly punished. It is important when considering the person who was refused a fair trial. It is important when considering the rights of someone who has been oppressed for over 200 years. It is important when considering the person who was unjustly searched. Not only is it important to emphasize those, but it's important to emphasize with the defendants, as there should always be a balance. Much of the Constitution contains broad language. That language is not explicitly defined. When cases involving that language are brought to the Supreme Court, they do not always have a clear right and wrong answer. These decisions require the personal interpretation of each justice, the personal interpretation that has been shaped by their values and opinions. One of those values can certainly be and should be empathy with others. Empathy is not meant to decide the outcome of a case. Rather, empathy should complement and inform the judge's approach in a decision. Impartiality and empathy can coexist on the Supreme Court.
Debate Round No. 1
RoyLatham

Pro

Con implies that most Supreme Court cases are close decisions and therefore cannot be decided on the basis of law, so therefore empathy should be a factor in such cases. After making the argument that empathy is needed to render a decision, he makes a perfunctory contradictory claim, "Empathy is not meant to decide the outcome of a case. Rather, empathy should complement and inform the judge's approach in a decision." He never explains how empathy works to resolve cases without becoming a factor deciding their outcome. The idea that empathy can "complement and inform a judge's decision" but not be a factor in deciding the outcome demands an impossibility. It is no more than doublespeak for allowing judges to make decisions based upon their personal feelings rather than upon the law.

Con is wrong in implying that most Supreme Court decisions are close ones, and wrong in suggesting that empathy is needed to resolve the cases that are close. The Supreme Court is an appeals court. The sole function of the Supreme Court is to determine if a lower court did not follow the law, including the Constitution. We expect there to be some close cases regarding what is and is not the law, but the methods for determining the outcome should relate solely to methods of interpreting law, not who a Justice feels ought to win.

It's true that most cases appealed to the Supreme court are not accepted. We should expect that most of the time the lower courts got the law right, so there is no proper grounds for appeal.

Of the cases accepted, it is not true that most subsequent Supreme Court decisions are close ones:

"A year ago at this time, [in 2007] the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases, the highest proportion in years, had been decided by margins of a single vote." -- "At Supreme Court, 5-to-4 Rulings Fade, but Why? " NY Times, http://www.nytimes.com...

So in a "highly polarized term," two-thirds of the cases were decided by majorities of 6-3 or greater. That shows that in most cases the Justices have a substantial consensus in their reading of the law. Nonetheless, there are cases where interpretation of the law is close.

There are many ways to resolve close decisions based solely upon law when the direct reading of the law is unclear. Justices may

a. rely upon a precedent of interpretation, even if the precedent is doubtful, rather than adopt a new reading, using the stare decisis principle http://en.wikipedia.org...

b. rely upon analogy to a precedent rather than directly upon precedent, "There are times, however, when a court has no precedents to rely on. In these "cases of first impression," a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential." http://www.answers.com...

c. rely upon a somewhat broader interpretation of the will of Congress or the will of the writers of the Constitution rather than a somewhat narrower interpretation, based upon law rather than empathy http://en.wikipedia.org...

d. have a preference for letting a lower Court ruling stand rather than overturn it, for example, Chief Justice Roberts preferred to let the California Medical Marijuana law stand http://liberalvaluesblog.com...

e. use legal principles of common law to interpret specific laws "lex communis ... In modern usage, frequently used to denote unwritten law which is generally derived from cases decided by courts, and not from the express authority contained in a statute. As a general term the common law may express the general customs of English law (and those in legal systems derived from England, such as that in the United States), originating from its medieval inheritance, which refers to early laws, unwritten in form but administered by the common law courts." http://www.answers.com...

It need not be just one of these factors. We suppose that many appropriate factors related to law would enter into a Justice's decision in a complex case. The Court gets the big bucks, so to speak, for unraveling difficult issues of law. We have every right to expect that the Supreme Court can act solely based upon law, difficult decision or not.

Pro cites the case of high school girl who was strip-searched for apparently inadequate reason. I feel sorry for the girl, don't you? Does it follow that she should win the case regardless of what the law provides? No. If she loses the case, parents in Arizona will be outraged that their local legislature has allowed such a thing. They will light their torches and start marching towards the State House. At that point there is a good chance that the situation is remedied, and in the process they will most likely clean up the body of law related to what is and is not permissible in searching students. Does a zealous Assistant Principal have the right to pat down a female student? The legislature should act, rather than having another case brought to the Supreme Court to decide. If the legislature does not act, then it will be an issue in the next campaign, and legislators will have to defend their stance, either successfully or unsuccessfully. Empathy should place a role in the voting process for candidates and for the voting process by legislators for laws, not the appeals process.

The fundamental error in Con's argument is the assumption that the process ends with the Court, so if empathy does prevail in the Court, all is lost. That is wrong. What has been happening is that the Court is usurping the legislative role in making decisions. In Griswold v. Connecticut http://en.wikipedia.org... the Supreme Court overruled Connecticut laws banning contraception. The Connecticut laws were patently absurd, but the legislature had failed to act for fear of losing votes in predominantly Catholic districts.

Had the Court not acted, it is inevitable the laws would have been overturned by popular demand. I am not arguing the Constitutional merits of this particular case. My purpose in citing Griswold is to make the point that empathy need not be invoked at the Court in order for empathy to prevail. In fact, if the legislature is forced to act, it is likely to clean up much of the whole mess it created rather than having the Court pick off one narrow point at a time. We should want the Arizona legislature to broadly define the bounds of school searches, whereas the Court can only rule that one specific instance is disallowed.

Pro asserts, "Empathy is not sympathy. Empathy is merely identifying with the thoughts, feelings, and state of another person, ... It is important when considering the person who was cruelly or unjustly punished. It is important when considering the person who was refused a fair trial. It is important when considering the rights of someone who has been oppressed for over 200 years. ..." Why is it important? It is only important so the judge will base his judicial opinion upon feelings and not upon the law. Otherwise, the law would suffice.

It is neither necessary nor desirable for appeals courts to use empathy to reach a decision. They should use legal principles alone. If a straight reading of the law is ambiguous, they may use legislative intent, precedent, lower court decisions, or broader legal principles to reach a decision, but they should not use their feelings for who they want to win. Empathy should remain the proper province of voters and legislators.

The resolution is affirmed.
tribefan011

Con

I'm sorry if my words implied that most Supreme Court cases are close decisions, so I'll clear that up. The sentence in question states, "As reflected in the close decisions, 5 of the 9 Supreme Court justices usually wind up on the "liberal" side and 4 usually wind up on the "conservative" side." I was referring to the close decisions when I used the word "usually". I did not mean that most cases are close if that's how you took it. Much of your argument is based on something that's not really there. I never said most Supreme Court cases are close. The only other sentence that could possibly imply that would be this one: "This observation gives heavy support to the claim that most cases rarely involve a clear right or wrong answer because the Supreme Court is often split." In that one, I just meant the Supreme Court is often split. It has happened many times over the years, allowing me to use the word "often".

Also, Pro is misrepresenting my argument. My rationale for why not all decisions could be decided from the basis of law was not just because they were close. The Constitution contains broad language that is not specific enough for each case to use as its sole basis. I stated that several times and made it pretty clear. Not only does Pro misrepresent my argument in that way, but Pro also states, "and wrong in suggesting that empathy is needed to resolve the cases that are close". I never once said that empathy should be used to resolve all cases that are close.

There was no contradiction in that statement. I explained why a judge should use empathy. Being a factor deciding an outcome and deciding an outcome are two different things. I said, "Empathy is not meant to decide the outcome of a case." I did not say empathy could not be a factor in deciding the outcome. Pro is attacking a straw man argument. I never said empathy could not be a factor in a decision. It just should not be the only factor in a decision, and it should compliment and inform the judge's approach.

Pro stated, "The sole function of the Supreme Court is to determine if a lower court did not follow the law, including the Constitution." This is not true. The Supreme Court has original jurisdiction over disputes between states. Article III, Section 2 of our Constitution states, "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."

Pro proceeds to give examples of how to decide cases solely by law, other than just using the Constitution. Reliance upon a precedent does not make the precedent correct. Option C comes into direct contradiction with this entire argument. A broader interpretation does not help with basing decisions on the law. Rather, its proponents base their rationale on the Founding Fathers' intent: that the Constitution be broad and "living" to accommodate change over time. This is not helping your argument because it's not entirely based in law, which goes against your rigid assertion earlier. The concept of the Living Constitution branches out into different interpretations, which don't strictly follow the law.

The options Pro provided still leave room for topics that haven't been covered. The options also ignore that the precedent could be wrong. As we saw with Brown v. Board, the precedent was wrong. Reliance on the precedent can often unfairly affect the oral arguments, in that the precedent is assumed to be correct, and it can excuse the Supreme Court from more thought on the law in too many cases. There are still cases of first impression, and the precedent isn't always right. These make cases fall outside of the options he provided.
I think Pro mistakenly quoted the part about English law, since English law obviously has no legal standing in our judicial system.

Pro's next argument is based on a false premise. It is unfair to assume that parents will be outraged that their legislature has allowed such a thing and march towards the Capitol. I assume it is hyperbole. Pro makes unfair assumptions in the actions of the citizens of Arizona. The assumptions that it will create change are unfair because it has been five years since the incident, yet no big change in regards to searches of students has come about in that time period. The magnitude of the ruling of the Supreme Court will set a standard for schools all across the country, helping prevent such searches in other states if they rule in Savana's favor, and may lead to the Arizona state legislature restricting searches in other ways. Assuming the legislature will reform searches in schools by themselves is unfair and unsubstantiated.

Pro then references a fundamental error in my argument, which isn't much of an error at all. Pro brings up Griswold v. Connecticut, and says the laws in question would have inevitably been overturned. This fails to consider how long it would take before the law was repealed. There is no way of knowing how long it would take before the law was repealed. This is not a fundamental error at all, because I can't assume the legislatures will take away every unjust law by themselves. It is irrational to assume popular demand will always have the same effect of the Supreme Court's ruling, if not more.

Empathy is important because it helps the judge not only see the societal implications of his or her ruling, but it also helps him or her see the societal implications of the law in question.

I will quote from Brown v. Board: "We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws….In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone….A sense of inferiority affects the motivation of a child to learn." The empathy in that decision is clear. Chief Justice Warren clearly emphasized with the feelings of young African-Americans around the country. Empathy was instrumental in the decision to integrate schools and strike down the unconstitutional "separate, but equal" ruling of Plessy v. Ferguson. This case embodies how empathy should be used by a justice. Through the identification of the feelings of young African-Americans, the Chief Justice saw the inherent inequality that came with segregation.

The law is not black and white, as Pro would like it to be. The Constitution still contains broad language, and many parts are open to personal interpretation. Empathy should play an important role in judge's approach to each decision. The judge should use empathy to see the societal implication of the law in question. The judge should also use empathy to see the societal implication of his or her ruling. As I have shown, empathy can be important in judging laws' constitutionality. Brown v. Board successfully used the language of the Constitution and the value of empathy to decide that the "separate, but equal" ruling was unconstitutional and that segregation was inherently unequal. Empathy helps see each law in action. If we are to honor the Constitution, then empathy should be used to uphold the words of our Constitution. Those words were held up in Brown v. Board with empathy playing a huge role in the decision.
Debate Round No. 2
RoyLatham

Pro

If empathy should have a role in judging appeals, then Con should tell us what role it should have. Con tells us, "The interpretation of the broad language in the Constitution reflects the values of the judges, as there isn't always a definitive right and wrong."

Con gives the example of interpreting "cruel and unusual punishment" as an example of when empathy should be used to render a decision. The are several alternatives to the judge using his own feels of what is "cruel and unusual." The judge might rely upon the original concept of cruel and unusual, under the strict constructionist legal theory that changes from original intent ought to be embodied in amendments, as provided for in the Constitution as the authorized way to change meaning. However, under the "living document" legal theory, the judge could rely upon what the consensus of state legislatures takes to be cruel and unusual. There is no prohibition against states having more restrictive standards than the Constitution allows. An alternative, also under "living document" legal theory, would to rely upon polls of the opinions of citizens as to what "cruel and unusual" means today. Neither of the alternative living document theories rely up how the judge himself empathizes with parties in the case, but rather upon objective assessments majority sentiment. Con would have none of that. He wants the judge's personal feeling to come into play.

If empathy has a role in appeals decisions, then that role will move the decision one way or the other based on the judge's feelings. Con seems to assume that the judge will always feel the way Con does, but legitimizing the practice does not provide any guarantees of the outcome. In another example, Con argues that the Court should feel sorry for the girl who was searched and rule in her favor even if the legal factors would otherwise have made the ruling go the other way. But if a justice happened to empathize with the school administration trying to keep order in an unruly school, a notion that empathy should play a role allows any decision dictated by the jurist's feelings. A written opinion would have to say, "The law was close so I went with my feelings." That's unacceptable.

In the case of the girl being searched, we should want the judge to consider the Fourth Amendment, the Ninth amendment, and other legal factors involved in order to make a decision based upon law. If it is unclear, then he can use one of the methods of the law I cited to arrive at a decision. If he takes the living document approach, the judge could survey state laws regard student searches or even public opinion polls. He should never make law based upon his feelings.

Con points out that the Supreme court has original jurisdiction in some cases. It doesn't matter whether or not the Supreme Court has original jurisdiction in some cases or not. The resolution deals only with 'judging appeals." In any case, it seems unlikely in any case that empathy would enter into decisions involving states. Imagine a judge writing, "I voted for Alaska in this case. They are such a cold state, I felt really sorry ..." That's not likely.

Con argued that cases are "often" close. The implication is that judging according to law is rarely adequate, so empathy ought to be the tipping point. In the worst year in decades, 2007, 5-4 decisions occurred in about a third of cases. It dropped last year. Most of the time liberal and conservative justices rule consistently based on the law. I argued that if interpretation of the law was unclear, then there were at least five methods within the bounds of law that could be used to decide close cases. Even if one wants to reinterpret the Constitution yearly, the empathetic expressions of the States and of the public can be used rather than personal empathy.

Con's rebuttal was to attack each method as being inapplicable in some cases. However, that does not mean that relying on empathy is a better method. A judge not ought rule that "the precedents seem inapplicable, so I went with my feelings." For example, the method of constructing an analogy with precedent is always applicable. Every new case is most like *some* previous case, even if it is not identical to some previous case. The point is that the judge should use one or more of the methods within law, rather than empathy.

Con argues that not all laws that he believes are bad will be overturned by legislatures, and that some bad laws would be overturned more quickly by courts than legislatures. The question, then, is whose empathy should prevail and how quickly. Keep in mind that empathy is subjective. If when voters act they do not do what Con wants, it is not an argument for an empathetic court. Perhaps the court will not share Con's opinion of who deserves the most understanding. To accept empathy as a factor, Con must agree to always accept the subjective judgments of the Court no matter which way they cut. Court decisions are much more difficult to reverse than legislative decisions. It's far better to let voters and legislatures struggle with the issues than to give judges free play with their feelings.

It's true that judges can act faster than legislators. Authoritarian rule has the advantage of speed. Kim Jung Il has never had to suffer the frustrating delays of getting voter concurrence. The whole system of checks and balances, the three branches of government, and the bicameral legislature are all designed by the Constitution to favor democracy and deliberation over speed. Upsetting that on the basis of the feelings of judges would be a great mistake.

Con claims that the Brown v. Board of Education was decided based upon empathy, but Con offers no evidence in support of that view. It was definitely not one of those 5-4 decisions where an empathic judge tipped the scales. "Handed down on May 17, 1954, the Warren Court's unanimous (9-0) decision stated that 'separate educational facilities are inherently unequal.' " Brown v. Board of Education was decided based upon direct reading of law, the 14th Amendment in particular.

If the Constitution demands overthrow of a lower court ruling, it ought to be implemented right away. Direct reading of law can always overcome precedent. My list of ways to decide close cases assumes that the law was not the determining factor, so some other method within the bounds of law, like precedent, should be used.

In arguing Griswold, I noted that my argument only applied if the decision to overthrow the law was not based upon empathy. It is the job of the Court to invalidate laws that are unconstitutional. On that basis we nonetheless expect some close decisions. I used Griswold to point out that it would be wrong for a court to use their personal feelings to make law. If a law is Constitutional and factors of empathy are compelling, then the legislature or the voters will see to it that the law is changed. If the empathy is not compelling then the law will not be rescinded. Con wants the empathy of judges to short-circuit the legislative process.

Con claims, "The law is not black and white, as Pro would like it to be." If I thought the law was black and white I would not have listed five methods within the law by which gray areas of the law could be resolved without the judge using his feelings to force the outcome.

Appeals cases deal solely with questions of law and should rely upon law and legal theories that deal with questions of law. Even under the legal theory of the Constitution being interpreted as a living document, it should not be the judge's personal feelings that guide interpretation, but rather the objective consideration of the sentiment of the nation. Allowing empathy of judges to play a role may not get the results one wants; recall that President George H.W. Bush though David Souter would be a conservative justice.

The resolution is affirmed.
tribefan011

Con

I have explained how empathy should be used. Empathy can effectively be used in interpreting the law. As was shown in Brown v. Board, it sometimes takes empathy to correctly interpret the law. I showed the relevant parts of the decision. They clearly showed how empathy was used to show the inferior feelings African-Americans felt as a result of a segregated education. Empathy should be used when applicable. It should be used to inform and compliment a judge's decision. It plays an important role in interpreting not only the societal effects of a law, but the societal effects of the decision. I have already explained this, so it's kind of late to act as if I haven't said what role it should have. Studying the societal effects of a law, and studying the societal effects of a decision will ultimately render a better decision. This was shown in Brown v. Board.

Now, Pro originally wrote, "We should want judges who reach decisions solely based upon the law, not feelings." He now proposes the "living Constitution" theory as an option. This comes into direct contradiction with his earlier statement. The concept of a living Constitution can be described in many ways, but it is not described as founded solely in law. It is founded more on interpretations and opinion than actual law. Pro proceeds to use a straw man argument in saying I just want the judge's personal opinion to come into play. I never said that, and your definition of empathy does not say that. A judge's personal feelings are not the same at all as the identification with others' thoughts, feelings, and states.

I am not going to dignify Pro's argument that the decision will be based on the judge's feelings. His definition of empathy does not back this up. In case you forgot, he defined empathy as "the intellectual identification of the thoughts, feelings, or state of another person." This is not the same as what he describes.

A huge problem is that much of Pro's argument has been based on nothing. He has used words like "imply" to attack my argument because I haven't actually said what he writes. He uses "seems to assume" in this round to act as if I feel the judge will always feel the way I do. This is not true. I know several issues that judges will not agree with me on, based on their decisions in the past. I don't argue that the court should feel sorry for Savana Redding. Pro made a huge mistake in that and really hurts the legitimacy of his argument. I said the court should empathize with her and the school. Empathy is not the same as sympathy. It's just important to see the court see themselves in the same situation to see if their rights are violated. If we don't have the courts using every situation to back up our rights possible, our rights will not mean much at all. Pro's argument in this aspect is based on terrible reasoning and falsehoods.

"But if a justice happened to empathize with the school administration trying to keep order in an unruly school, a notion that empathy should play a role allows any decision dictated by the jurist's feelings."

Apparently, you forgot when I wrote this: "However, I certainly want the justices of the Supreme Court to also empathize with the school and think about the security of a school." As I have shown, it is sometimes necessary to use empathy to see if someone's rights have been violated.

The point of pointing out that the Supreme Court has original jurisdiction was to show a false premise in your argument.

No, my implication is not that judging according to law is rarely adequate. If you've read my responses in this argument, my statements have been that judging according to law is not always adequate. I also never said empathy ought to be the tipping point. Empathy can be the tipping point, though.

The fact is Pro's assumption that the Arizona State Legislature would act in favor of regulation of school searches is baseless. They have not made any progress in the five years since Savana Redding was searched. It is unfair to assume the legislatures will act where the Supreme Court does not.

As Pro has shown in Round 3, his argument is based largely on a lack of understanding of the word "empathy". In the first round he wrote, "Empathy is "the intellectual identification of the thoughts, feelings, or state of another person."" He has proceeded to confusing empathy with feelings. Empathy is not the same as sympathy. Empathy is not the same as feelings. Much of his argument is based on this faulty premise.

"Con claims that the Brown v. Board of Education was decided based upon empathy, but Con offers no evidence in support of that view."

I most certainly did. You can choose to ignore that evidence, but I definitely did. Here it is again:
"We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws….In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone….A sense of inferiority affects the motivation of a child to learn."
If you read the decision, the inherent inequality of segregation was based on the inferiority African-Americans felt as a result of their segregation. My argument is completely backed up by this sentence: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone"
Chief Justice Warren empathized with the feelings of young African-Americans, as made apparent by that quote. The decision says "a feeling of inferiority". That is using empathy effectively along with the law.

Also, I did not say Pro thought the law was black and white. I said you would like it to be. That is made apparent by your language. Also, the options you provided are not founded solely in law. The "Living Constitution" theory is not founded solely in law. Judicial precedent can sometimes be faulty.

Pro failed to refute my argument regarding Brown v. Board of Education. I showed specific language from the decision that shows empathy was used to strike down segregation. It was effectively used alongside the law. As I have stated over and over again, the Constitution is not always clear. It contains broad language. We sometimes need to use empathy to see if others have to deal with injustice. This has been proven in this argument. Empathy should be continued to be used to recognize the societal implications of laws. Laws can sometimes treat certain people unfairly, violating the Equal Protection Clause. But this unfairness cannot always be seen from an objective standpoint. Sometimes it does take the intellectual identification with their feelings and thoughts. Empathy should also be used in seeing the societal implications of a decision. As we've seen, Plessy v. Ferguson was unconstitutional because of the inherently unequal segregation policy it allowed. This was not overturned until empathy was used to overturn it. Had empathy been used in Plessy v. Ferguson, we hopefully could have progressed a lot faster than we actually did. I hope that empathy will continue to be used when the law is not enough and to back up the law.
Debate Round No. 3
17 comments have been posted on this debate. Showing 1 through 10 records.
Posted by tribefan011 7 years ago
tribefan011
First of all, the debate is over, RoyLatham. That argument on Brown v. Board would be rather irrelevant because that's not how it was decided. It was decided that way because of the "feeling of inferiority" it generated in African-Americans.

And thank you, Lexicaholic.

Also, to everyone voting, please do not take this into account when voting, but I apologize for having a lower quality argument in the final round. I was at Boys State, and had to write it in a short amount of time.
Posted by Lexicaholic 7 years ago
Lexicaholic
Well, I'll be ... I think Con actually convinced me that empathy has a place in rendering legal decisions. The problem with Sotomayor was that she mentioned empathy as being derived from her cultural heritage ... it rubbed me the wrong way. Understanding it as a tool properly used to tie the case back to precedent or to reinforce impartiality is indeed a valid use. Congrats tribefan011.
Posted by RoyLatham 7 years ago
RoyLatham
The other point of interest is the theory of the Constitution as a living document. I did not advocate that theory. Its standard in debate to to cover the contingence that if one believes x true, then one could then follow with y as a result. so if one believes that the meaning of the Constitution ought to change with the times, then one could adapt the meaning not according to the empathy or other sense of the justices, but rather according to an objective metric of legislative or public opinion. So rather than the justices claiming how black people felt, they could rely upon a poll of black people as to how they felt. I suspect that a contention that black students could not feel equal without white people in the room could not be objectively supported. The alleged empathy was in fact condescension. But perhaps not; in any case, a poll would be better than relying on the judicial empathy.

The idea of the Constitution "living" in accord with polls or the consensus of legislative bodies was argued as a "what if" by Justice Scalia in a debate with Justice Breyer. Breyer argued that the justices ought to decide what was the best current interpretation, based upon their personal wisdom.
Posted by RoyLatham 7 years ago
RoyLatham
In retrospect, I think there was a major disconnect on the Brown v. Board of Education aspect of the debate. I argued that the central issue in Brown was that the the 14th amendment made racial discrimination unconstitutional because quite clearly the education provided by local governments to black people was inferior to that provided to white people. My argument takes as premise a line of argument that I didn't make explicit: It was unquestionable true that it was inferior because black schools facilities, textbooks, and so forth were below the standards were substandard compared to that for whites. The remedy selected by the Supreme Court was to require integration, because that effectively guarantees that students will be treated equally, because if black students and white students are in the same classroom, they are most likely to obtain the same standard of education.

Nothing in that line of reasoning requires empathy from the justices. It depends solely upon the law. The treatment was unequal, the law requires equal treatment, and integration ensures remediation.

Pro worked from a different line of reasoning. For Pro, the inequality derived from blacks not only being treated unequally, but also feeling unequal. A remedy of equal treatment could be achieved by upgrading black schools to make them equal, but, according to the argument requiring empathy, blacks would not feel equal unless there were white students in the same classroom. Thus separate cannot be equal. Moreover, the argument goes, equal protection under the Constitution requires that people feel equal, not just that they be treated equally. Pro did not state that argument explicitly.

Of course, how people feel varies over time. This the meaning of the Constitution can change, theoretically, even on a daily basis, and an empathetic judge is needed to track those feelings.
Posted by sherlockmethod 7 years ago
sherlockmethod
I had a similiar debate and used the principle of "reasonable person" and showed how objective considerations are used in Ap. Court decisions. Con aptly used the cruel and unusual clause to show the broad language in the Constitution, but never really solidified the argument. After reading the debate, I came to the conclusion that a tie is the best decision. Both did well. Good debate.
Posted by iamadragon 7 years ago
iamadragon
tribefan011 is a beast.
Posted by sherlockmethod 7 years ago
sherlockmethod
I took a very similiar debate, and Con is doing well so far in this one.
Posted by tribefan011 7 years ago
tribefan011
This actually won't be a very hard debate to win. He'll be nailed for saying this: "We should want judges who reach decisions solely based upon the law, not feelings."
Posted by MTGandP 7 years ago
MTGandP
"Since the President is for it and every liberal commentator in the country thinks it is a good idea, I figure there must be some argument for it."

No offense to the president and all those commentators, but they really aren't as logical as we are. Their job isn't to make the right decision; their job is to look like they made the right decision.
Posted by mongeese 7 years ago
mongeese
Barack Obama made a sentence that directly compared being poor with being African-American?
12 votes have been placed for this debate. Showing 1 through 10 records.
Vote Placed by InquireTruth 7 years ago
InquireTruth
RoyLathamtribefan011Tied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:Vote Checkmark--1 point
Had better spelling and grammar:Vote Checkmark--1 point
Made more convincing arguments:Vote Checkmark--3 points
Used the most reliable sources:Vote Checkmark--2 points
Total points awarded:70 
Vote Placed by Youngblood 7 years ago
Youngblood
RoyLathamtribefan011Tied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:--Vote Checkmark1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:06 
Vote Placed by patsox834 7 years ago
patsox834
RoyLathamtribefan011Tied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07 
Vote Placed by Lt.Zubin 7 years ago
Lt.Zubin
RoyLathamtribefan011Tied
Agreed with before the debate:-Vote Checkmark-0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07 
Vote Placed by Steven123 7 years ago
Steven123
RoyLathamtribefan011Tied
Agreed with before the debate:-Vote Checkmark-0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07 
Vote Placed by Lexicaholic 7 years ago
Lexicaholic
RoyLathamtribefan011Tied
Agreed with before the debate:Vote Checkmark--0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:--Vote Checkmark1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:Vote Checkmark--2 points
Total points awarded:24 
Vote Placed by Agnostic 7 years ago
Agnostic
RoyLathamtribefan011Tied
Agreed with before the debate:-Vote Checkmark-0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07 
Vote Placed by JBlake 7 years ago
JBlake
RoyLathamtribefan011Tied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:--Vote Checkmark1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:06 
Vote Placed by sherlockmethod 7 years ago
sherlockmethod
RoyLathamtribefan011Tied
Agreed with before the debate:-Vote Checkmark-0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:--Vote Checkmark1 point
Had better spelling and grammar:--Vote Checkmark1 point
Made more convincing arguments:--Vote Checkmark3 points
Used the most reliable sources:--Vote Checkmark2 points
Total points awarded:00 
Vote Placed by RoyLatham 7 years ago
RoyLatham
RoyLathamtribefan011Tied
Agreed with before the debate:Vote Checkmark--0 points
Agreed with after the debate:Vote Checkmark--0 points
Who had better conduct:Vote Checkmark--1 point
Had better spelling and grammar:Vote Checkmark--1 point
Made more convincing arguments:Vote Checkmark--3 points
Used the most reliable sources:Vote Checkmark--2 points
Total points awarded:70