Empathy Rules, Part 4

In today's column, Thomas Sowell continues his theme of empathy versus the law. See Obama vs. Oliver Wendell Holmes.

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The great Supreme Court justice Oliver Wendell Holmes Jr. is not the kind of justice who would have been appointed under Pres. Barack Obama’s criterion of “empathy” for certain groups.

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Justice Holmes did not let his sympathies with some people determine his votes on the High Court. [...] Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society.

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He said: “Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.”

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“The criterion of constitutionality,” he said, “is not whether we believe the law to be for the public good.” That was for other people to decide. For judges, he said: “When we know what the source of the law has said it shall be, our authority is at an end.”

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“The law is the witness and external deposit of our moral life.” But a society’s need to put moral content into its laws did not mean that it was the judge’s job to second-guess the moral choices made by others who were authorized to make such choices.

[Emphasis added.]

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Empathy Rules, Part 1, Empathy Rules, Part 2, Empathy Rules, Part 3.