prudentialism

As I understand it it can all be sorted out, but you are — I suspect unintentionally and in good faith — offering a bit of a straw man due to your not distinguishing a few key concepts, such as prudentialism versus constitutional judgment, empathy for a legal injustice versus sympathy resulting in bias, and a judge versus a justice.

The Volokh Conspiracy » Legal Ambiguity, Empathy, and the Role of Judicial Power: 2009

This starting point for why justices must often make values-based judgments is that there is more than one type of legitimate constitutional argument so there is often more than one legitimate constitutional answer — you can make a legitimate argument based on Posnerian prudentialism, but also the plain meaning of the text, the original intent of the ratifiers, precedent, and the structural relationships between the different branches of government, among others.

The Volokh Conspiracy » Legal Ambiguity, Empathy, and the Role of Judicial Power: 2009

So, analogies to ordinary prudentialism fail to capture the decisions and, I think, the opportunities / necessity for empathy informed judgment that a member of the Supreme Courtfaces.

The Volokh Conspiracy » Legal Ambiguity, Empathy, and the Role of Judicial Power: 2009

Whether you support it or not, prudentialism pragmatism, consequentialism, including a study of the slippery slope, is a legitimate way to interpret the constitution.

Eugene Volokh and Jack Rakove debate Heller. Ann Althouse 2008

This is pure prudentialism – what makes the cases come out different is not the force of doctrinal logic but a set of political calculations about how Congress and the public will accept the decision.

Balkinization 2003

This is pure prudentialism – what makes the cases come out different is not the force of doctrinal logic but a set of political calculations about how Congress and the public will accept the decision.

Balkinization 2003

Paley, and the naked _prudentialism_ of his system, it is true that in a longish note Paley disclaims that consequence.

Memorials and Other Papers — Volume 1 Thomas De Quincey 1822

Paley, and the naked _prudentialism_ of his system, it is true that in a longish note Paley disclaims that consequence.

Memorials and Other Papers — Complete Thomas De Quincey 1822

In all, if one pulls apart the threads of the Professor’s post, one sees that the prudentialism which he rightfully criticizes is likely quite distinct from the empathy to which President Obama refers.

The Volokh Conspiracy » Legal Ambiguity, Empathy, and the Role of Judicial Power: 2009

I do not expect anyone to read all of it, but voices of agreement or scorn are always welcome: 1. prudentialism / pragmatism v. constitutional judgment — On the one hand, as Professor Kerr says, empathy can manifest itself because one is a pragmatist, a la Judge Postner, and thus comfortable applying one’s own view of how a case should come out irrespective of the law.

The Volokh Conspiracy » Legal Ambiguity, Empathy, and the Role of Judicial Power: 2009