Supreme Court Justices, Empathy, and Social Change:
A Comment on Lani Guinier's Demosprudence through Dissent

89 Boston University Law Review 589 (2009)

Linda McClain

Abstract

Justice Souter’s imminent retirement from the U.S. Supreme Court  provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama’s remarks about the relevance of  life experience and of empathy are sparking discussion of relevant judicial qualifications.  This Essay examines Professor Lani Guinier’s recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call “demosprudence.” That controversial decisions by the United States Supreme Court can spur dissenting citizens to action is, by now, a familiar idea. Offering as examples dissents by Justices Souter, Ginsburg, and Scalia, Guinier looks at the catalytic role of dissenting opinions. The Essay relates this current interest in the role of dissent – and the role of biography in spurring dissents -- to earlier legal scholarship about the importance of empathy in judicial decision making and as a spur to social change.  It considers the emphasis on life experience and the capacity for empathy in President Obama’s statements about appropriate judicial qualifications. It concludes by contrasting Guinier’s project with other perspectives on the institutional capacity of the Supreme Court to spur social transformation better to realize constitutional goals and values.

 

Keywords: Supreme Court, dissent, empathy, social change, justice, demosprudence

 

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Linda McClain Contact Information
lmcclain@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
Phone: 617-358-4635
Fax: 617-353-3077

Presentation and Publication Information:

Linda McClain, "Supreme Court Justices, Empathy, and Social Change: A Comment on Lani Guinier's Demosprudence through Dissent " 89 Boston University Law Review 589 (2009).

Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract_id=1397114


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