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David Lebedoff: Justice, do you feel like I feel?

All judges have empathy. The only question is to what or to whom that empathy is directed.

By DAVID LEBEDOFF

Last update: June 24, 2009 - 7:55 PM

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The nomination of Sonia Sotomayor to the U.S. Supreme Court has had a remarkable effect on people's hearing. All ears now are perked for the voice of judicial activism, but how many of us have ever actually heard it speak? I have, once, up close and personal, from my seat in the second row of the visitors' bench in the Supreme Court chamber.

And believe it or not, the voice belonged to Chief Justice John Roberts.

It was during the Exxon Valdez case. In fact, it was the final act of that case, which had begun 19 years earlier (!) when an oil tanker longer than three football fields went aground on the sharp rocks of Prince William Sound, ripping open the hull and unleashing millions of gallons of oil to spread slowly along the Alaska coast.

Fish cannot sue, but fishermen can, and many did -- claiming that their livelihood had been lost through carelessness. After an appeal so protracted that it made Jarndyce and Jarndyce seem like night court, the matter had finally washed up on the highest court in the land.

The lawyer for the fishermen got up to speak. There was a lot at stake. An Alaska jury had awarded $5 billion to the fishermen. His job was to defend that award.

He had barely begun to do so when Roberts addressed him from the bench. The chief justice asked a question that he obviously felt was the key to the case:

"So what can a corporation do to protect itself against punitive damage awards such as this?"

Roberts was just showing his empathy. Where he was going was where he was coming from. He has a good deal of empathy for corporations, which is his right, consistent with his heritage and experience, and a consequent suspicion of punitive damages (though in the Exxon case the corporation could have protected itself simply by investing in a Breathalyzer).

The fishermen's lawyer tried to answer the question, but the Chief kept hitting the ball back, and when your opponent is also the referee, line calls don't matter.

What the lawyer might have said, if he didn't care about arguing any more cases in the Supreme Court, was that the voters of Alaska, through their elected representatives, had provided for punitive damages and, hey, Chief, I thought you were against legislating from the bench. The Alaska legislators face the voters, and you don't. So let them do what their voters want. If you want to declare punitive damages unconstitutional, go ahead and do so. Otherwise, let me proceed.

Now, if Bush vs. Gore had gone the other way, then a different chief justice would have heard the Exxon Valdez case, and the question from the bench would most likely have been, "So what can a fisherman do to protect himself against an oil spill such as this?"

That question, just like Roberts' query, is an example of empathy. Everyone has empathy for something. Some judges focus their empathy on corporations and others on fishermen. It is now being very loudly claimed that Sotomayor has empathy for those with backgrounds like her own. So? She'll fit in well with Roberts. He'll understand perfectly.

All this talk about empathy and judicial activism is a smokescreen behind which stands a very obvious truth: Whether liberal or conservative, a judicial activist is a judge with five sure votes.

David Lebedoff is a Minneapolis attorney and author.

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