Disagreeing with Empathy

Judicial critics often assume judges with whom they disagree are operating in bad faith. (Sometimes judges are guilty of this too!). Such a hermeneutic of suspicion erodes social trust, civility, and, ultimately, the rule of law. This course will explore the justifications, benefits, and costs of reading judicial opinions with a hermeneutic of empathy: assuming the judge wrote in good faith, trying to understand the underlying conceptual premises, and engaging with the arguments on their own terms. While the course will include readings and discussion of theory on judicial decision making, its main focus will be on close readings and vibrant discussion of opposing opinions in hotly contested cases decided by the US Supreme Court.