Obama's Empathy for the Supreme Court

I recently suggested that Justice Sam Alito's lonely dissent in the Phelps First Amendment case seemed to embody the "empathy standard" for judicial review, the very standard that Republicans warned about in the Supreme Court nomination hearings for Sonia Sotomayor and Elena Kagan. Over the weekend, Emily Bazelon made a similar observation in a provocative piece for The New York Times Magazine. In it, she called Alito "the closest thing conservatives have to a feelings justice" and said that, in his opinions, "we get a window onto right-wing empathy on this court."

Bazelon's profile of Alito is worth reading in full as it provides a portrait of how empathy may be used to underscore and affirm personal feelings, rather than transcend them. This was precisely the fear of Republicans on the Senate Judiciary Committee. They believed, in the words of Alabama Senator Jeff Sessions, that empathy "empowered" a judge to "favor" some plaintiffs over others, and that the President's desire to appoint judges with a special capacity for empathy essentially meant, in the words of Utah Senator Orrin Hatch, that he intended "to pick people who will take sides."

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