A judge without empathy is inhuman

The anti-Obama rallying cry that a Supreme Court justice must rule by reason alone is ignorant of how our minds and bodies work.

By Robert Burton

Published May 12, 2009 10:51AM (EDT)

As we await the next Supreme Court justice appointment, Barack Obama critics are rallying around the peculiar notion that empathy should not be a factor in interpreting the law. On May 1, the president said, "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

When hosting Bill Bennett's "Morning in America" radio show last Friday, Republican National Committee Chairman Michael Steele said, "I don't need some justice up there feeling bad for my opponent because of their life circumstances or their condition and shortchanging me and my opportunity to get fair treatment under the law … I'll give you empathy. Empathize right on your behind."

It's astounding that a trait normally considered admirable -- one usually sought out in choosing personal relationships, colleagues and associates -- is now seen as synonymous with being emotional and partisan, as though being empathetic makes one less rational and reasonable. It's understandable, given the deplorable nature of partisan politics, that conservative critics would come up with a unified denouncement of whomever Obama chooses. But why settle on an argument that flies in the very face of modern cognitive science and the understanding of how our brains function?

At the heart of the misunderstanding are erroneous assumptions that stripping empathy from decision-making will necessarily improve the quality of the decision, and that one has the ability to consciously control his or her feelings of empathy.

Anyone familiar with modern psychology is aware of the concept of emotional intelligence -- that good decisions combine reason and awareness of one's feelings. As many recent popular cognitive science books have pointed out, the vast majority of our thoughts originate outside of awareness. They stem from neural networks that silently combine our basic biological predispositions with past experience, both remembered and long-forgotten. Present at the very origin of our thoughts, and integral to the final shape of each of our decisions, are the various inherent biological traits that make each human unique.

For example, someone who's prone to taking risks will have a different perspective on any risk-reward decision than someone who is inherently timid. These differences don't begin as conscious choices; our biology guides our thoughts in these varying directions. Part of this difference is as basic as our DNA, such as a gene for dopamine-receptor activity being strongly correlated with risky behavior.

Studies on empathy reveal a similarly strong biological component. Even at a personal experiential level, we suspect that some people are naturally more empathetic than others. How much empathy can be achieved through parenting and proper education remains an open question. But such efforts are the hallmarks of how civilized people can overcome the barbarism of pure self-interest. The converse, trying to avoid feelings of empathy, hardly seems like a noble goal.

Until the recent criticism of Obama's mention of what he seeks in a Supreme Court justice, I had never heard of or considered how empathy might impair judgment. After all, sound judgment is based upon considering all possible information that is available, rather than discarding observations or feelings that aren't strictly "reason-based." Furthermore, having a feeling doesn't mean that you must act on it -- unless you believe we have no element of free will, not even the veto power over biased thoughts.

The idea that we can cleanse our thoughts of allegedly negative influences arising out of empathy is profoundly misguided. Listen to the argument of Richard Epstein, a legal scholar and professor of law at the University of Chicago. "Empathy matters in running business, charities and churches," he argues. "But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice." Only one who subscribes to the scientifically outdated notion that we can step back from our thoughts in order to judge them, and strip them of unconscious and emotion-laden influences, could come up with such a half-baked idea.

But to play devil's advocate, what if one could eliminate empathy from decision-making? Exactly how would this improve our thinking on complex moral issues? Consider for a moment Harvard neuroscientist Joshua Greene's view of a famous moral philosophy dilemma:

"A runaway trolley is hurtling down the tracks toward five people who will be killed if it proceeds on its present course. You can save these five people by diverting the trolley onto a different set of tracks, one that has only one person on it, but if you do this that person will be killed. Is it morally permissible to turn the trolley and thus prevent five deaths at the cost of one? Most people say "Yes.'"

Now consider a second scenario. "Once again, the trolley is headed for five people. You are standing next to a large man on a footbridge spanning the tracks. The only way to save the five people is to push this man off the footbridge and into the path of the trolley. Is that morally permissible? Most people say "No.'"

Why the difference? Aren't pulling the switch and pushing the man into the path of the trolley morally equal in terms of saving the maximal number of lives?

According to Greene, "our differing responses to these two dilemmas reflect the operations of at least two distinct psychological/neural systems." One system "tends to think about both of these problems in utilitarian terms: better to save as many lives as possible." This system depends on the dorsolateral prefrontal cortex, a part of the brain associated with "cognitive control" and reasoning -- a region felt to be "more controlled, perhaps more reasoned, and relatively unemotional."

But on fMRI, a second anatomically different neural system -- the superior temporal sulcus, posterior cingulate and medial frontal gyrus -- responds quite differently, generating a relatively strong, negative emotional response to pushing the man off the footbridge dilemma but not to pulling the switch.

Though not exactly a scientific term, this difficulty or revulsion in pushing the man off the footbridge is often referred to as the "ick factor," a reflection that certain behavior is intrinsically disgusting or revolting, irrespective of whether it is reasonable. For most people, shoving a man to his death "feels like murder," while pulling an impersonal lever constitutes a "rational decision." Whether or not this cognitive dissonance is strictly reasonable is irrelevant; this is how humans think.

What Greene's studies (duplicated by others) suggest is that brain systems involved with moral judgments must balance utilitarian concerns with deeply rooted emotional tendencies. Both modes of thinking arise out of unconscious brain mechanisms that jostle for priority outside of conscious control. It isn't hard to imagine that one's degree of personal empathy toward any situation will be a major factor in how these two systems eventually arrive at a decision. Indeed, fMRI studies show that feelings of empathy are activated in the same general regions as the emotional system that prevents you from pushing the man off the bridge.

From a strictly utilitarian perspective, pushing the man off the bridge is the correct decision. By empathizing with the man and deciding that pushing him is the wrong choice, you are condemning five people to death to save one. In those rare real-life circumstances where the moral decision gets down to a black-and-white calculation, it might seem relatively easy to determine what’s best for society. But even here, the decision has wide-reaching implications not apparent in this simple calculation. If we consistently push one man off a bridge to save five innocent people, we will have an entirely different culture from one that balks at the notion of pure utilitarianism at the cost of any innocent lives. Imagine a society in which you knew that you could, at any moment, be sacrificed for a “greater good.”

But few complex decisions have an obvious, easily calculated solution. We cannot know with certainty that a war is just, embryos have "souls," or whether an unconscious patient wishes to be kept alive. In such situations, we must look to our feelings. All good legal opinions arise out of a balance between deeply rooted moral feelings and conscious deliberations.

Not surprisingly, one group has consistently been shown to have a much higher percentage of willingness to push the man off the footbridge -- those with injuries to the emotional decision-making brain centers. Italian researchers have shown that patients with "focal ventral medial prefrontal cortex lesions" were more willing than controls (volunteers with no evidence of any brain injury) to judge personal moral violations as acceptable behaviors, yet on impersonal judgments, they were comparable to controls. In short, they lacked the "ick" feeling that prevented the controls from making morally revolting choices.

Such prefrontal cortical injuries, if acquired early in life and before normal social skills develop, have been correlated with a variety of personality traits that are commonly bundled together under the labels of sociopath or psychopath -- lying, stealing, violence, and lack of remorse after committing such violations.

Some cognitive scientists suspect this at least partially explains adult sociopathic behavior. The suggestion is that there is a subtle functional deficit in the circuitry for processing emotions key to making moral decisions. Kent Kiehl, a Yale psychologist investigating the biological roots of psychopathy, has demonstrated that criminals without a sense of remorse differed from criminals with a sense of guilt: The remorseless psychopaths had far less activity in those regions that automatically and quickly process moral emotions. Paul Eslinger, Penn State College of Medicine neurology professor, after uncovering similar results in a group of patients clinically diagnosed as sociopaths, suggests, "'Snakes in suits' may have specific neural deficits that preclude social emotional responses."

Years ago, I had dinner with a highly respected California State Supreme Court Chief justice, an old friend of mine nearing the end of his career. After musing on some of his many difficult decisions, he turned to me and said, "Robert, I have always identified with the underdog and felt that society had an obligation to protect those without a voice. Do you think I was wrong?"

His question still haunts me with its humility and self-reflection. After all his years on the bench, he continued to re-evaluate how his feelings for others impacted his opinions. Indeed, it's this wise approach to recognizing the limits of pure reason that we want in our justices, not folks with the blind and scientifically unjustifiable belief that they can keep emotions out of their decisions, or that empathy is somehow a dirty word. But then you need a heart to appreciate how empathy is the basis of good law.

Robert Burton

Robert Burton M.D. is the former chief of neurology at Mount Zion-UCSF Hospital and the author of "On Being Certain: Believing You Are Right Even When You're Not" and "A Skeptic's Guide to the Mind." A former columnist for Salon, he has also been published in the New York Times, Aeon and Nautilus, and currently writes a column at the Cambridge Quarterly for Healthcare Ethics.

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