Here's the exam from my Constitutional Law II class:
On May 1, having received notice that Justice Souter will retire, President Obama said:
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
Let’s assume that the President — who used to teach constitutional law — has arrived at this preference through studying the cases that we studied in this course. [We studied equal protection and due process.] He might see various of the opinions as the product of “some abstract legal theory or footnote in a case book.” Other opinions might seem to him to spring from an awareness of “how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation” and so forth.
Don’t assume the listed “daily realities” are the only “daily realities” that he thinks a Justice should “understand and identify with” to “arrive at just decisions and outcomes.” And consider that he merges this “quality of empathy” with dedication to the rule of law, honor for constitutional traditions, and respect for “the integrity of the judicial process and the appropriate limits of the judicial role.”
Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) ... that illustrate the two types of judicial reasoning that the President contrasted....
[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice.
I read nearly 60 exams, and it was interesting to see which cases were chosen in the 2 categories. One case clearly won the prize for most empathetic. Perhaps you can guess. Interestingly, one opinion that was frequently presented as empathetic was also cited a few times as an example of the abstract type. That's not surprising: a judge driven to a conclusion by empathy might strive mightily to present the decisionmaking process in dryly abstract terms.
(The students took the exam before Obama nominated Sonia Sotomayor.)
ADDED: Thanks to
Glenn Reynolds and
Jonathan Adler for linking. It's especially interesting to see the comments over at Volokh Conspiracy, and a couple readers thought my question was "ridiculous" or "unfair," so let me say this. First, it was an open book/open notes exam — so there is no value to getting students to recite doctrine. Second, in my conlaw classes, we concentrate on the different approaches to interpretation, and the exam tests for that. Third, my students had examples of my old exams and had every reason to expect something like this. A few days before the exam, I was sitting in a café and a student came up to me and just had to tell me that "Facebook was lit up" with my students trying to predict the question. There was a lot of focus on the Souter retirement. I wouldn't be surprised if some of the predictions came very close to the actual question asked.
Some Volokh commenters imagine that I had particular cases that I wanted the students to present as the right answers. I absolutely did not. What I gave most credit for was serious engagement with the problem of empathy — how it can extend to both sides in many cases and the different ways that empathy is expressed in the language of the cases. I especially liked when students broke through the surface of empathy vs. abstraction and did not simply convert it to liberal vs. conservative. I myself am convinced that Justice Scalia's interest in tradition springs from an emotional place. Read his dissents in
United States v. Virginia and
Lawrence v. Texas again and think about it. From the Virginia case:
I do not know whether the men of VMI lived by this ["Code of a Gentleman"]; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
I am looking for intellectual engagement with ideas and with the texts of the opinions, and the students did an excellent job (especially with only 3 hours to do it).
And in case you are wondering what opinion won the empathy prize:
here it is.
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