"Ah, you who make iniquitous decrees, who write oppressive statutes, to turn aside the needy from justice and to rob the poor of my people of their right, that widows may be your spoil, and that you may make the orphans your prey! What will you do on the day of punishment, in the calamity that will come from far away?"
These words bellowed from the mouth of Isaiah (10.1-3a) condemn Judah's oppressive laws. Obviously, law was critical to biblical prophets like Isaiah. And if these words are any indication of what made law particularly significant, it was its effect on those who lived lives unlike a king—the "needy," the "poor," the "widow," the "orphan." In the Bible, law is frequently associated with justice, and biblical justice usually focuses on how society treats those in the shadows of life. This is at the heart of biblical legal jurisprudence, a relatively simple jurisprudence—relative, that is, to modern legal systems. It is still relevant, however, for holding modern jurisprudence up to biblical scrutiny.
At the time of this writing, everyone is still waiting to hear President Obama's nomination to replace David Souter on the Supreme Court. Not surprisingly, pundits and politicians are weighing in not only with their predictions of whose shoulder Obama will tap, but on the proper judicial philosophy for a federal judge, especially a justice on the highest bench in the land.
President Obama, a constitutional scholar himself, has stirred up even more controversy than usual because of his recent public pronouncement about what he expects of his Supreme Court nominee: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives….I view the quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes." His use of the word "empathy" has been a particular target of his critics, a word that suggests a disposition unlike a neutral umpire many political conservatives believe ought to characterize a judge. Indeed, the current Chief Justice John Roberts uses this very metaphor to describe the ideal judge: "'Judges are like umpires….Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.'" (See Jeffrey Toobin's excellent piece http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?currentPage=all to read more about the Chief Justice.) This metaphor is based, of course, on a strikingly different conception of jurisprudence than President Obama's.
From a biblical standpoint, both jurisprudential conceptions are problematic. Roberts' view is vulnerable to the status quo rather than to the kind of justice over which the Bible frets. That is, opportunities to do justice for the disadvantaged are swallowed up by the will of the powerful embodied in law. In fact, according to Toobin, a very close watcher of the Supreme Court, "In every major case since he became the nation's 17th Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Obama's emphasis on empathy, on the other hand, undervalues the importance of the predictability of law and the will of the majority even as it may lead a judge, in the term's ambiguity, to side with a violator of biblical justice.
Still, biblical justice demands empathy for the marginalized since it is through empathy that a judge can account for how a ruling effects those pressed down by the powerful. Arguably, it was Solomon's empathetic sense that led him to make the wise decision that scurried up the truth about which woman the disputed son belonged to. And it was jurisprudential empathy, after all, that forced the Supreme Court to overturn the allegedly neutral "separate but equal" doctrine that legitimized those abominable Jim Crow laws. Neither powerful individuals/groups nor the majority need judicial empathy. They almost always get their way. Of course, biblically sanctioned empathy doesn't simply side with those at the bottom; the biblical story is rife with lessons condemning unfairness no matter from what quarter of life it comes. Empathy is also not the only thing a wise judge needs to make just decisions. But the requirement of something like judicial empathy rightly draws the judge's eye—an eye typically trained on society's upper crust—to search sympathetically the landscape of the conditions of those otherwise excluded from that which makes for human flourishing.
Bret Kincaid is associate professor of political science at Eastern University in St. Davids, PA.