Just how good is empathy after all?

Is empathy a good thing in judges? I would say that the answer is yes -- but that's not because it always leads judges to wise decisions, or specifically to liberal ones. If there were any doubt about these qualifications, here's the penultimate paragraph from Justice Scalia's opinion in Arizona v. United States, decided by the Supreme Court on June 25, 2012 (and available here). He writes:

        As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants--including not just children but men and women under 30 -- are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

This is the language of empathy, here directed to Arizona citizens' feel[ing] that they are "under siege by large numbers of illegal immigrants." While Justice Scalia asserts that the human realities he portrays so forcefully are not "the proper object of our attention," it is hard not to sense that in fact those realities do occupy some part of his attention. Advocates of empathy in judging would not complain of this, though apparently Justice Scalia himself might. But the familiar point that Justice Scalia's words vividly illustrate is that the impact of empathy on judicial decisions depends on who the judge empathizes with.

Even those who see empathy as a legitimate, or integral, part of judging likely agree that there is a point at which a judge's empathy obscures his or her judgment. Was that true here? It is clear that Justice Scalia is very angry about the majority's decision; he ends his opinion by saying that if Arizona can't do what it was trying to do in this case (which he describes as "securing its terrritory" and "protect[ing] its sovereignty"), then "we should cease referring to it as a sovereign State." He also refers at some length, both in the passage I've quoted above and earlier, to the President's decision not to enforce the immigration laws against a class of people who came to this country when they were under 16 (and, the point Scalia refers to in the quotation above, are not yet over 30 years old) -- a decision that was not directly at issue in the case and that was made, as Justice Scalia notes, after the case was argued to the Supreme Court. I am not sure how to measure whether any of this reflects too much feeling on Justice Scalia's part, and I'm pretty confident we could find similarly outspoken comments in the opinions of some of the great liberal justices of the past.

But in saying I'm not sure about this, I don't mean to dismiss the question. It seems to me that those (like me) who do approve of empathy in judging need to find a way to discuss, and then if possible measure, when empathy does distort judgment. Is the issue simply a matter of quantity -- too much of a good thing? Or is the quantity of empathy important only in the context of the structure of the rest of the empathetic judge's character -- so that some judges can be thoughtful and empathetic, while others can only manage one or the other? Or are there forms of empathy that support judgment and others that interfere with it? All these and no doubt other questions arise, and call out for answers, once we acknowledge (correctly) that judging isn't simply an exercise in objective reasoning.

How wolves bred people

In his article "From the Cave to the Kennel," Wall Street Journal, Oct. 29, 2011, Mark Derr reviews new evidence and inference about the process by which wolves became dogs. The old view, as he describes it, was that some wolves entered human settlements as scavengers, and we set about transforming them into dogs. The new view is that wolves and humans chose each other, and that early domesticated dogs were much closer to wolves than we might have thought. "The emerging story," he writes, "sees humans and proto-dogs evolving together: We chose them, to be sure, but they chose us too, and our shared characteristics may well account for our seemingly unshakable mutual intimacy."

Derr points out that humans assisted by dogs would have had "a competitive advantage over those without," as their dogs would have served both as camp guards and pack animals (early dogs were big). Then he comments, but without elaboration, that "[t]he relationship between dogs and humans has been so mutually beneficial and enduring that some scholars have suggested that we--dog and human--influenced each other's evolution."

How would that have come about? Well, of course we don't know. But it's easy to see what might have happened. Those humans who had dogs to help them were more secure and more mobile, and hence more likely to survive.  Their children were more likely to survive too. And we're more likely to be the descendants of the humans who were good at associating with wolves and dogs than of other humans.


What does it take to be good at associating with wolves? Communication skills are probably important; those humans who were best at conveying instructions to other creatures who lacked language would have been best able to take advantage of the aid wolves could offer. Empathy would also have been useful, in part to make communication more effective, but perhaps also to make interaction more enjoyable. The wolves that chose us would have preferred to stay with the people they liked.


The upshot is that the interaction between humans and wolves tens of thousands of years ago favored people who were empathetic and communicative. Not overwhelmingly empathetic, to be sure; humans and wolves no doubt hunted together from a very early time, and jointly treated various other animals as prey pure and simple. But the people who made friends with wolves could well have been somewhat warmer and more social than others. And once those traits were favored as a result of the survival value of having wolves or dogs as companions, then their impact needn't have been limited to our dealings with wolves. We are the descendants not of those with an empathy-with-wolves trait, perhaps, but rather of those with an empathy trait -- now available to help shape our relations with many other animals, not to mention with each other.


So if people and wolves evolved together -- or, put differently, if wolves bred people even as people much more emphatically bred wolves -- what wolves bred us for may have been traits that are an important part of what we think of today as most distinctly humane.