I’m just going to quote John Sides:
The Washington Post tells me that in today’s hearing, Elana Kagan “sidesteps empathy question, says ‘it’s law all the way down,’” which leads the reporter, Paul Kane, to say “So much for the empathy standard.”
I know some people who will be disappointed. The American people. About 68% of them, to be precise. That is the percentage who said in a 2009 survey that it was “very important” for Supreme Court justices to “be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Only one other quality out of a list of 12 — “Uphold the values of those who wrote the U.S. constitution long ago” — was judged very important by more respondents (74%). Only 8% of the sample said that empathy was not important at all. Empathy also attracted the support of both parties: 77% of Democrats and 61% of Republicans said that it was very important.
Put me down with the people on this one. And also with the view that there’s really no contradiction between these views. Clearly, no judge should ever be in a position where he or she says “my understanding of the law dictates Outcome X but I’m going to rule so as to create Outcome Y just because I feel like it.” Equally clearly, however, judges regularly disagree about what the correct ruling is. And in particular, in closely divided Supreme Court decision we by definition have a substantial amount of disagreement.
Here I think the citizen is well within his rights to posit that the character of the justice is going to make a substantial difference in determining actual outcomes. John Roberts and the SCOTUS majority evidently approach the law with an attitude that says the owners and managers of businesses have a hard time getting a fair shake in this country, what with all the workers and environmentalists and consumers and their lawyers out there. By contrast, the progressive minority takes a more skeptical view of these claims. So you keep seeing these splits. It’s simplistic, of course, to say that this is just a question of who empathizes with whom. But I think it’s clearly relevant.