By Elena D. Riveria
Empathy is a cornerstone of human connection. It allows us to understand and share the feelings of others, helping us build relationships, foster cooperation, and create supportive communities. However, when empathy intersects with judicial decision-making, it becomes a double-edged sword. While empathy can enable judges to grasp the personal circumstances of those before them, unchecked or selective empathy can erode impartiality and fairness, which are the pillars of justice. To ensure that empathy in the judiciary serves the public good rather than undermines it, legislative oversight and mechanisms for judicial accountability must be implemented. These measures will help maintain the balance between compassion and objectivity in judicial rulings, ultimately leading to a stronger, more just society.
The Development of Empathy in Human Behavior
Empathy is not an automatic or unlimited resource; it develops over time and is influenced by biological, social, and environmental factors. Mirror neurons, for example, help us simulate the experiences of others, creating a foundation for emotional understanding. As children grow, their empathetic abilities mature. Cognitive empathy—the ability to understand another’s perspective—emerges later than emotional empathy, which allows us to feel what others feel.
But empathy is also shaped by social factors, such as family dynamics and cultural norms. Children who grow up in environments where emotional expression and empathy are valued tend to develop stronger empathetic skills. Likewise, exposure to diverse perspectives, whether through friendships, education, or media, helps broaden an individual’s capacity to empathize with people from different backgrounds.
These nuances of empathy development offer valuable insights into human behavior, but when applied to judicial decision-making, they reveal the complexity of how judges process emotions, facts, and fairness. The question is not whether judges should be empathetic—of course, they should—but rather how empathy can be managed and applied consistently without compromising justice.
Empathy’s Role in Judicial Decision-Making: A Double-Edged Sword
Judges, like other leaders, face the challenge of balancing empathy with the impartiality required to uphold the law. In many cases, empathy helps judges grasp the emotional and human dimensions of a case, making it possible to issue rulings that are not only legally sound but also compassionate. For example, family courts often deal with sensitive matters like child custody, where empathy can provide insight into the emotional well-being of children.
However, empathy can also lead to empathy burnout, especially when judges encounter emotionally charged cases day after day. Repeated exposure to trauma, suffering, and distress can numb a judge’s ability to empathize over time. When this happens, judges may make decisions that feel detached or overly rigid, as they struggle to balance the emotional toll of their role with the need to remain objective.
Empathy also consumes cognitive resources. The more a judge engages emotionally with the parties involved in a case, the more difficult it becomes to focus on the legal aspects. Empathy overload can lead to decision fatigue, where emotional reasoning takes precedence over legal analysis, potentially causing judges to lose sight of the law’s demands.
Preferential Empathy: The Path to Injustice
One of the most significant risks of empathy in judicial decision-making is preferential empathy—the tendency for judges to empathize more with certain individuals or groups based on personal experiences or emotional triggers. Judges, like everyone, are shaped by their backgrounds, cultural values, and biases, which can influence their decisions. This means that, in some cases, judges may unconsciously favor one party over another because of shared experiences or emotional connections. For example, a judge might feel more empathy for a victim in a criminal case, which could lead them to overlook the defendant’s legal rights. Similarly, in custody battles, a judge may sympathize more with a parent who employs stricter disciplinary methods, mistakenly equating authoritarian parenting with good control or effective teaching. This bias can result in decisions that overlook the potential emotional or psychological harm to the child, especially when warnings of abuse are dismissed as “necessary discipline.”
To address this, courts should adopt objective evaluation tools like the Adverse Childhood Experience (ACE) test to assess the long-term impact of parenting styles on children. This would help judges move away from subjective biases and ensure they do not misinterpret strict authoritarian discipline as effective parenting, when in reality it may cause harm. Such tools can prevent judges from favoring abusive, authoritarian parents and ensure that the child’s well-being remains the central concern in custody decisions.
The tragic consequences of empathy misapplied in the judicial system are evident. According to the Center for Judicial Excellence, more than 944 children have been murdered by a parent during or after custody disputes since 2008, often because courts failed to prioritize child safety and instead granted custody to an abusive parent. These tragedies highlight the urgent need for judicial reform to ensure empathy doesn’t cloud judgment and lead to further harm for vulnerable children.
When a judge views a more empathetic or lenient parent as “soft” or ineffective, it creates an empathy imbalance that skews the fairness of the decision. Despite the fact that an empathetic parent often fosters emotional intelligence and supports a child’s psychological well-being, this parenting style is frequently undervalued in favor of stricter, more authoritarian approaches. This selective empathy undermines the ethical core of judicial decision-making, resulting in rulings that are more influenced by personal bias than by legal principles. Over time, such selective empathy erodes public trust in the judiciary, as decisions appear inconsistent, emotionally driven, and lacking in legal grounding.
Empathy isn’t the issue endangering our children—abuse is. When judges favor one parent while overlooking clear evidence of abuse, they effectively place children in harmful environments. These decisions are not grounded in the laws of the United States, but instead resemble arbitrary decrees, disconnected from the legal protections intended to guide these cases. Judges who allow personal biases to override the safety and well-being of children must be held accountable and removed from the bench. Such decisions shape society in dangerous ways, enabling abuse to thrive under the guise of protecting parental rights.
This situation mirrors the decades of silence surrounding the Catholic Church abuse scandal, which came to light in 2002. For years, allegations of abuse were dismissed, and the institution’s reputation was prioritized over the safety of victims, allowing systemic abuse to persist unchallenged and shielded from scrutiny. The result was a global crisis of accountability, with thousands of victims coming forward and the Church forced to confront its failings.
Today, we face a similar failure to protect children in the legal system. Just as the Church shielded its clergy from accountability, judges who overlook clear signs of abuse and make biased decisions are often protected from being held responsible. This perpetuates a dangerous cycle, with children’s well-being sacrificed in the name of parental rights, and the consequences remain just as severe as those seen in the Church scandal.
Legislative Oversight and Judicial Accountability: Building a Stronger Society
Given these challenges, how can empathy be effectively managed in the judicial system? The answer lies in a robust system of legislative oversight and judicial accountability. By implementing mechanisms that ensure judges are not only empathetic but also impartial, society can ensure that judicial decisions remain fair, transparent, and ethical.
First, legislative bodies must play a stronger role in overseeing the judiciary, establishing frameworks that guide judges in balancing empathy with legal reasoning. This could involve regular reviews of judicial decisions, especially in cases where empathy appears to have clouded impartiality. Legislators should also consider policies that address empathy burnout, ensuring that judges have access to professional support systems such as counseling, peer mentorship, and emotional wellness programs to mitigate the emotional toll of their work.
Second, judicial accountability mechanisms are crucial in preventing preferential empathy from skewing legal outcomes. This could involve mandatory ethics training, focusing on bias recognition and emotional self-awareness, helping judges reflect on how empathy influences their decisions. Periodic performance evaluations that consider not only legal accuracy but also consistency in emotional application could provide checks against selective empathy.
Finally, legislatures can implement transparent systems for public complaints against judicial officers whose rulings suggest ethical lapses or biases. Ensuring that judges are held accountable for decisions that appear to be unduly influenced by personal or emotional factors can help restore public trust in the judiciary.
Conclusion: Empathy Should Inform, Not Control Judicial Decisions
While empathy is a vital human trait that helps judges understand the personal and emotional realities behind the cases they adjudicate. But empathy must be tempered with fairness, objectivity, and ethical responsibility. Left unchecked, empathy can lead to burnout, cognitive overload, and preferential treatment, compromising the very justice that courts are meant to deliver.
Legislative oversight and judicial accountability provide the necessary frameworks to ensure that empathy remains a tool for understanding, not a weapon for bias. By recognizing empathy’s limits and instituting safeguards, we can build a judiciary that is both compassionate and just, capable of making decisions that are grounded in fairness and serve the collective good. Only through these measures can we ensure that empathy, when appropriately managed, contributes to a stronger and more equitable society.
