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.
TUESDAY, MAY 12, 2009
ROBERT BURTON

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 peoples hopes and struggles, as an essential ingredient for arriving at
just decisions and outcomes.
When hosting Bill Bennetts Morning in America radio show last Friday, Republican
National Committee Chairman Michael Steele said, I dont 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 Ill give you
empathy. Empathize right on your behind.
Its 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. Its 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 ones 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 whos prone to taking risks will have a different perspective on
any risk-reward decision than someone who is inherently timid. These differences dont
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 Obamas 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 arent strictly reason-based.
Furthermore, having a feeling doesnt 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 devils 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 Greenes 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? Arent 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.
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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 Greenes 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 isnt hard to imagine that onesDEGREE

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 whats 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.
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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, its 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, 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." His
column,"Mind Reader," appears regularly in Salon.