This past April, the Supreme Court was asked to judge a case involving a 13-year old schoolgirl who was strip searched on suspicion she had pills on her person, in violation of the school's zero tolerance policy.  The search was conducted by female staff members.  The pills, which had already been discovered at another location, proved to be the legal painkiller ibuprofen, but none were found on this girl.  Was the school entitled to search her in the way it did?

Many contentious debates about the role of the Court revolve around the assertion that it is not the Court's role to make law, nor to take sides, but simply to apply the law and the Constitution as they exist, without regard to what any Justice might have preferred these fundamental sources of justice to say.   This is as it should be.

The Court then, was constrained to apply the law to the experience of this school girl, without prejudice or favoritism.  The "law" in question here is actually the 4th Amendment to the Constitution, which states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated".

There we have it.  What the Court needed to do was to apply that test strictly as the 4th Amendment demands.  If the strip search for the pills was reasonable, the school's action was justified.  If it was unreasonable, the school had acted inappropriately.

A problem arises, however, because one searches the Constitution in vain for an exact definition of "unreasonable", nor does the Constitution describe the conditions under which strip searches of 13-year old girls are reasonable.  Clearly, however, a school has a right to forbid the possession of drugs or medication (even legal medication) on school property if not needed for established medical purposes.  It has a right to enforce that policy.

Perhaps what is known as a "thought experiment" will be informative in this case - what the Court likes to call a "hypothetical".  Imagine, if we might, a Court of unknown political philosophies, weighing the issues in this case with the intent of strictly applying the Constitution in reaching a decision.  Each Justice understands the obligation of schools to protect the health of their students by strict drug prohibition policies.  Each also understands that at some point, a search becomes so intrusive and humiliating that only the most urgent threat justifies its employment.  Each then, understands the need to decide the balance between two questions - how urgent is the threat, and how traumatic and humiliating is the search?  Imagine also that the Court appears to be split in evaluating that balance.

Imagine one more thing.  Eight of the Justices are male, and one female.  In this thought experiment, which side of the balance is the female Justice likely to find herself?

By now, it should be clear that this "hypothetical" recapitulates the April case of 13-year old Savanna Redding, and it should be no surprise that Justice Ruth Bader Ginsburg appears to judge the extent of trauma and humiliation to be greater than that perceived by some of her male counterparts (although Justice Scalia appeared to share many of her views).

The case is complex for many reasons, and I wish to set aside the question of which side is right.  Rather, I would ask a more simple question: "if a strict application of the 4th Amendment requires the Court to  know how much trauma and humiliation Savanna Redding experienced, would  not justice be well served if at least one of the Court's members was able to imagine what it was like to be 13 years old, a girl, and strip searched?

The capacity to do that - to put oneself in another's place to imagine that other person's experience - has a name.  Empathy.

Empathy is not sympathy, nor is it an inclination to rule in favor of a particular constituency, although each of these sources of potential unfairness can masquerade as empathy.  True empathy simply entails an accurate understanding of another person's experience, without prejudice as to how that should decide a case.

The Savanna Redding case exemplifies a principle that applies broadly.  Empathetic understanding underlies the strict application of the law in a wide array of situations, and the concept of what is "reasonable" while a common issue in legal cases, is not the sole example.  The 8th Amendment forbids "cruel and unusual punishment", but it is hard to imagine how one can decide whether a punishment is cruel with no understanding of what if feels like.  Torture is illegal at least in part because it's cruel.  Is waterboarding cruel?

A criticism against the misuse of empathy is that it can be one-sided in cases, whereas both sides deserve a fair understanding.  The criticism is justified.

An ideal judge will empathize with all sides in a dispute, and best understand how the outcome will affect each. Given the limitations of human nature and experience, however, no judge will perfectly match that ideal, but a diversity of experience will help a panel of judges inform each other on the consequences of pending decisions. 

The issue is highly pertinent to current debate over the Supreme Court nomination of Sonia Sotomayor.  Does empathy in gender or ethnic discrimination cases require an understanding by at least one or two Justices of what it's like to be Hispanic or a woman?  Given the current composition of the Court, I would say it does, provided that Sotomayor recognizes the distinction between empathy and favoritism, and without implying that a man can never empathize with a woman's experience.  On the other hand, couldn't one reasonably argue that given the history of advantage in America enjoyed by while males, there is little need to empathize with them?

I won't offer my own view on that point.  Rather, I defer to someone of more consequence.  Here is a quotation from Barack Obama's speech on race last year in Philadelphia: "Most working- and middle-class white Americans don't feel that they have been particularly privileged by their race. Their experience is the immigrant experience - as far as they're concerned, no one's handed them anything, they've built it from scratch. They've worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor. They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they're told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time."

I would suggest that empathy in a judge, like empathy in a President, enhances our opportunities to do justice for all who seek it.  l.