Do You See What I See?

May 19, 2009
Posted by Jay Livingston

President Obama took a lot of flak from conservatives when he mentioned “empathy” as one quality, among several others, that he would look for in a Supreme Court justice.

We need somebody who has the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, African American, gay, disabled and old.

For conservatives, empathy is irrelevant. They take an absolutist position: the facts are the facts, and the Constitution says what it says. The court should not bend that Constitution in order to accommodate the interests of teenage moms, African Americans, or anybody else.

But empathy is not just about the interpreting the Constitution.. It’s also about the facts. And, as Obama seems to recognize, a set of facts – what you see – depends on where you are looking from.

Here’s a video that has nothing to do with gays or blacks or teenage moms. It’s a high-speed chase, shot from inside a police cruiser, It isn’t from Cops. It’s from a 2007 Supreme Court case (Scott v. Harris, 127 S. Ct. 1769) .

Watch the video, then answer the two questions. (Warning: this ain’t Mario Kart. It ends with the Officer Scott using his police car to deliberately ram Harris’s Cadillac, which crashes at high speed into a light pole. Harris suffered a broken neck and was left a quadriplegic.)*



On a six-point scale, from Strongly Agree to Strongly Disagree:

• During the pursuit, Harris drove in a manner that put members of the public at great risk of death.
• During the pursuit, Harris drove in a manner that put the police at serious risk of death.

Harris’s lawsuit depended on the answers to these factual questions. For the Supreme Court justices, the video said it all. Justice Alito: “I looked at the videotape on this. It seemed to me that [Harris] created a tremendous risk [to] drivers on that road.” (Scalia got a laugh her by adding., “He created the scariest chase I ever saw since ‘The French Connection.’”

Justice Breyer says the tape flat out turned him around. “I was with you when I read . . . the opinion of the court below,” Justice Breyer related. “Then I look at that tape, and I have to say that when I looked at the tape, my reaction was somewhat similar to Justice Alito’s.”

But would everyone see it the same facts in this video? Well, yes and no, at least according to a Harvard Law Review article, “Whose Eyes Are You Going to Believe.” The authors, three law professors,** asked a sample of 1350 people – not Supreme Court justices – to view the tape. The overwhelming majority of people said that the chase put the public and police at risk. Three-fourths thought that the use of deadly force was justified, but only a slight majority felt that it was worth the risk.

(Click on the chart for a larger view.)

But the percentages varied among groups. Using mostly demographic variables, the authors created four types of juror – types they identify as Ron, Pat, Bernie, and Linda – who had vastly different responses to the questions. Only 36% of the Linda group felt that the use of deadly force was justified, compared with 87% of the Rons. As to who was at fault, 94% of the Rons but only 29% of the Lindas assigned the fault to Harris.

The paper has several other comparisons as well as correlation tables on specific demographic variables. It’s also the only law review article I’ve ever read that made me laugh out loud (well, chuckle), thanks to the way the authors present their typology (not that I spend much time searching for yocks in law journals). It’s also eminently readable and non-legalistic. Download it here.

The authors’ point is that people may watch the same tape, but they see different things,


* Respondents were also provided the following set of facts:

• The police clocked Harris driving 73 miles per hour on a highway in a 55 mile-per-hour zone at around 11 pm.
• The police decided to pursue Harris when Harris ignored the police car’s flashing lights and kept driving rather than pulling over.
• The chase lasted around seven minutes and covered eight to nine miles.
• The police determined from the license plate number that the vehicle had not been reported stolen.
• Officer Scott joined the chase after it started. He did not know why the other officers had originally tried to stop Harris.
• Scott knew that other police officers had blocked intersections leading to the highway but did not know if all of the intersections were blocked.
• Officer Scott deliberately used his police cruiser’s front bumper to hit the rear of Harris’s car[,] hoping to cause Harris’s car to spin out and come to a stop.
• Officer Scott knew there was a high risk that ramming the car in this manner could seriously injure or kill Harris.
• Harris lost control, crashed, and suffered severe injuries, including permanent paralysis from the neck down.

**Dan M. Kahan, David A. Hoffman & Donald Braman