So wrote Supreme Court Justice Harry Blackmun in dissent in 1989. A 4-year-old Wisconsin boy, Joshua suffered severe injuries from his father’s beatings. Though state social services officials knew he was in danger, they did nothing. When Joshua’s guardian later claimed their inaction violated his constitutional right of liberty, the court ruled in favor of the negligent officials.
Blackmun’s response offered rare honesty. The question of whether the officials’ failure to act violated Joshua’s rights was “open.” The court’s prior rulings could be interpreted “broadly or narrowly depending upon how one chooses to read them.” Both sides had reasonable arguments. “Faced with the choice, I would adopt a ‘sympathetic’ reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging.” The court had retreated “into a sterile formalism” that blinded it to “the facts of the case.”
Blackmun left the court two decades ago, but his dissent in Joshua’s case remains a powerful defense of emotion in judging. Some cases demand a judge act not as a “dispassionate oracle of the law,” but with a bit of soulfulness as well. Some cases require empathy to guide the intellect.
Blackmun’s insight helps explain last week’s marriage ruling, Obergefell v Hodges. The difference between Justice Anthony Kennedy’s majority opinion and the lead dissent of Chief Justice John Roberts is empathy, and lack thereof.
Both sides had reasonable arguments. Marriage has long been recognized as a fundamental right, but had never been defined as anything other than one man and one woman. Gays and lesbians argued that their exclusion from marriage was a violation of their constitutional equality right, but no case had previously announced classifications based on sexual orientation were subject to “heightened scrutiny” by judges. Opponents of marriage equality argued that unelected judges should be reluctant to displace the political process; proponents explained that courts are most crucial when a fundamental right of a marginalized group is at stake.
Like in Joshua’s case, the constitutional provisions could be read “broadly or narrowly,” depending on “how one chooses to read them.”
Kennedy chose a broad reading. His opinion for the court provides workable answers to the legal questions, but the opinion shines in describing the depth of the relationships of gay and lesbian couples and the harm they suffer from discrimination. Describing the partnerships of the couples who brought the suit, he says granting marriage “is their only real path” to a “profound commitment” offering “the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” The denial of this right to gay and lesbian couples, “especially against a long history of disapproval . . . works a grave and continuing harm.”
Passages from Kennedy will live on for decades in legal casebooks, but also as wedding readings. And they should. Gay and lesbian citizens can point to Obergefell as the first Supreme Court ruling that recognizes them as full and equal citizens and acknowledges the pain they feel from centuries of marginalization. Kennedy faced the legal choice of how to read the Constitution’s promises, and followed Blackmun in choosing a “sympathetic” reading that comported with “dictates of fundamental justice.”
In contrast, Roberts thinks of judging as a passionless exercise. He explained in his confirmation hearings a decade ago that he aspired to be an umpire, calling balls and strikes. He excels in cases where the solution can be discerned be sheer force of intellect. The day before Obergefell, he announced his opinion upholding Obamacare in the face of a cynical challenge brought by its political opponents. Many saw his opinion as a sign of a move to the center. Conservatives worried that he was becoming the next David Souter, the New Hampshire Republican appointee who voted with the liberal bloc for much of his tenure. But Roberts’s Obamacare ruling was not ideological; it was simply a success of technical legal reasoning. It was not a hard case. He called a strike.
Twenty-four hours later, his technocratic nature led him astray. Obergefell was a judgment call, not a clear ball or strike. He fixated on how the definition of marriage had always excluded same-sex couples. He wrung his hands about judicial activism. He worried about the slippery slope to polygamy. These are serious concerns, but not unanswerable. But he did not seem to try. His blindness to the real harms created by the marriage bans led him “into a sterile formalism.”
Judging with feelings alone can be disastrous. But cold intellect can lead to error as well. In cases like Obergefell, the Court does not derive new rights without understanding their importance to the people who claim them. This is both an intellectual and emotional exercise. Kennedy got this. Roberts did not.
Kent Greenfield is a professor of law at Boston College Law School and a former clerk to Justice David H. Souter.