Scott Lemieux, noting Emily Bazelon's deconstruction of Justice Samuel Alito's recent emotionally charged rulings, argues that "there's no effective difference between Alito's 'empathy' and just being a Republican party-liner."
That's not to say, of course, that it's wrong for justices of any ideological stripe to empathize with people making legal claims. The problem with Alito is that his empathy is exceptionally limited.
Of course, it's "limited." Liberal and moderate jurists are limited in their empathy too; they just empathize with the parties liberals would prefer them to empathize with. The real problem is that conservatives frequently substitute "empathy" for rigorous legal reasoning while pretending to give strict textualist interpretations of the Constitution.
There's Justice Anthony Kennedy musing that women might later feel sad about having late-term abortions, so they should be prevented from having them. We could recall Justice Antonin Scalia defending the constitutionality of anti-sodomy laws on behalf of the "many Americans" who were merely "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive," or Justice Clarence Thomas' passionate defense of school vouchers on behalf of underserved urban minorities.
We are always selective in our empathy; that's what made the attacks on Sonia Sotomayor for admitting that she's a human being with a particular point of view so ridiculous. What's really worth taking apart here is the notion that conservative opinions are all the product of dispassionate textual readings of the Constitution and have nothing to do with the emotional or cultural sensibilities of the judge making the ruling. Alito's rulings are interesting precisely because their tone and reasoning is so clearly contrary to that particular myth, which has been central to conservatives' rhetorical framing of "originalist" legal philosophy as the only legitimate form of constitutional interpretation.
