Empathy For The King

by digby

Yesterday I dashed off this glib little bon mot, which deserves a much more serious treatment:

One can't know for sure that the fact that Chief Justice John Roberts, who has so far voted every single time with the ruling elites, was affected by his personal experience as a privileged white male -- coddled, groomed and rewarded from his earliest days by the conservative establishment he served -- but it certainly isn't unfair to think he might have been.

This idea that Sotomayor saying that she is influenced by her Latina heritage and her experiences as woman is somehow evidence that she can't be "impartial" is absurd, of course, because every human being is a product of their own experiences. What seems to be at issue here is that Sotomayor admits that her life experiences are part of her and is, therefore, presumed to be inclined to give "her own" special treatment. That the conservative white (and one black) males who sit on the court might do the same thing is not even considered.

Anyway, this seems to me as if it should be fairly obvious, but it's not. So, Adam Serwer has gone to the trouble to spell out how the conservative Justices of the Supreme Court routinely show empathy to "their own:"

In recent weeks, conservatives have turned "empathy" into a talking-points staple in order to preemptively cast doubt on whomever Obama picked to replace Souter. They characterize liberal justices as bleeding hearts intent on reading ephemeral rights into the Constitution while conservative jurists are merely content to interpret the law.

But the conservative justices on the court -- Anthony Kennedy, Antonin Scalia, Samuel Alito, John Roberts, and Clarence Thomas are not emotionless robots able to interpret the law without bias or personal experience coloring their rulings. They don't lack empathy; they simply don't empathize with the people Obama or liberals might like them to. Conservatives want their justices to empathize with the religious, the unborn, and powerful corporate interests. Liberals want their justices to empathize with women and minorities, workers and the downtrodden.

For all the pearl-clutching horror coming from the right, the conservative legal movement has picked its plaintiffs carefully, with an eye toward catching the winds of public opinion through sympathetic plaintiffs such as Frank Ricci, the white firefighter who was denied a promotion, or Terri Schiavo's parents, Robert and Mary Schindler, who sought to keep Schiavo on life support despite her husband's claim that she expressed a desire not to be kept alive in a persistent vegetative state. Empathy is an important element of the conservative legal movement on both sides of the bench. Most recently, it's been conservatives who have been arguing for empathy for the architects and perpetrators of torture on the grounds that they broke the law ostensibly in the interest of the country, while liberals have called for rigidity in upholding laws against torture.

While some conservative justices, such as Kennedy, have been more emotive than others, emotion and perspective have always shaped the Supreme Court's opinions, particularly in cases involving the issues conservatives care most about, such as abortion, gay rights, and affirmative action. In his opinion in Gonzales v. Carhart, the case that upheld bans on partial birth abortion, Justice Kennedy memorably wrote, "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." While Kennedy cited precedent in his opinion, it was nonetheless clearly guided by his paternalistic "empathy" for the hypothetical mother whom he felt needed protection from decisions she might regret, despite the lack of evidence to support that notion.

Likewise, Justice Alito, as a judge on the 3rd Circuit of the United States Court of Appeals, was the lone dissenter in the 1991 case Planned Parenthood v. Casey. He argued for upholding a law that would compel wives to inform their husbands if they were going to have an abortion. The original law was intended to protect women who might be subject to violence or abuse from their spouses. Alito cited previous rulings, including a 1976 dissenting opinion from Justice Byron White, ("A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life") in order to make the case that a father had a "legitimate interest" in the life of his child that stopped short of a husband being able to forcibly prevent his wife from having an abortion but gave him a right to be notified in advance. Of course, forcing women to notify their husbands might lead to that exact outcome. Alito and his pro-life predecessor were empathizing with the potential father, and that empathy informed their opinions.

Justice Scalia's dissenting opinion in the 2003 Lawrence v. Texas case that struck down anti-sodomy laws laments the plight of those "protected" by laws criminalizing homosexuality. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," Scalia wrote. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

On issues of race, both Justice Thomas and Justice Roberts have shown a degree of empathy, but for different reasons. In a 2002 case involving school vouchers, Thomas didn't merely argue that the voucher law in question was constitutional; he likened black pursuit of education to the struggle for emancipation, quoting Frederick Douglass at the beginning of his opinion. "Today many of our inner-city public schools deny emancipation to urban minority students," he wrote. This is not a dispassionate reading of the law. In general, Thomas' rulings on race-related issues are deeply influenced by his belief that affirmative measures taken to address racial discrimination hurt blacks rather than help them. In his writing, Thomas empathizes deeply with other black folks -- he just disagrees with them on a significant number of issues, such as affirmative action, which most black folks support.

Roberts is probably the most reserved of the justices when it comes to letting his feelings creep into his legal reasoning. But as Jeffrey Toobin noted in The New Yorker last week, on issues of race, Roberts has let the mask slip most recently in oral arguments involving the Voting Rights Act and the Frank Ricci affirmative action case. While Thomas asserts that laws addressing discrimination harm blacks rather than help them, Roberts' view appears to be that such laws discriminate against white people.

It's certainly possible that there will be cases where Sotomayor's personal experience gives her some particular empathy. But the same is obviously true of the other Justices as well. The problem is that the other Justices speak for the status quo, which generally defaults to the interests of the powerful and is therefore not seen as one of those pernicious "special interest groups" which seeks to press for their own advancement at the expense of others.

I must say that this reminds me so much of the arguments we had during the election, when it was presumed by the conservatives and Villagers that any appeal to voters on the basis of race, ethnicity or gender was illegitimate, as if pleas to the "disaffected white male" hadn't been a staple of electoral politics for the past several decades, replete with codpieces, guns and NASCAR. But that isn't considered special interest pandering because these voters are "normal Americans."

If you care about having a genuinely pluralistic and democratic society, it's clear that Court (and every other institution) benefits from a wider range of experiences, as Obama rightly asserts. For instance, Justice Ginsberg recently lamented the fact that she was the only woman on the court:

Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.

"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

Her comments probably didn't change the outcome --- the questioning indicated that the decision will probably be that schools have a perfect right to strip search little girls whenever they want to --- but at least somebody said it. Maybe someday there will be a few more who actually care.

Update: Greenwald has more on this, and highlights this piece of video from Samuel Alito's hearings, courtesy DailyKosTV.

Of course, after he thinks about it he concludes that his family succeeded in American because they were all superior individuals while others who suffered from discrimination are losers. But let nobody say his experiences don't shape his worldview.