Legal News

On Justice Samuel Alito: Conservatives Can Have Empathy Too!

By Ashby Jones

Republicans pummeled Obama when he named empathy as a quality worth pursuing in his Supreme Court nominees. But they don't complain about Alito, whose record shows that selective empathy can be deployed in the service of piling vote upon conservative vote.

– Emily Bazelon, writing in Sunday’s NYT Magazine.

The above quote forms the crux of a nice piece in the NYT magazine on one of the hitherto least examined current Supreme Court justices, Samuel Alito.

Alito, a George W. Bush appointee, tends to align with the other stalwart conservatives on the bench: Justices Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts.

But where, as Emily Bazelon writes, “Antonin Scalia has his constitutional theory of originalism, often in the company of Clarence Thomas,” and Chief Justice John Roberts “also tends to lead with big legal principles,” less has been written about Alito’s guiding principles. Alito, continues Bazelon, “usually reaches the same results as the others, but . . . does it by being small-bore.”

That is, Alito operates “one case at a time, rather than from a grand vision.” And along the way,  she writes, “Alito has proved himself to be the closest thing conservatives have to a feelings justice. In fact, it's lately from Alito that we get a window onto right-wing empathy on the court - and onto conservative instincts generally about who deserves our solicitude.”

Case in point: Alito’s solo dissent in the free-speech suit Albert Snyder brought against a church that picketed the funeral of his son, a soldier who was killed in Iraq. Alito sided with Snyder, and as the Cornell law professor Michael Dorf pointed out on his blog, the justice's dissent seemed driven mostly by fellow feeling for the grieving father before him.

Is empathy necessarily a bad quality in justices, be they liberal or conservative?

Not necessarily, writes Bazelon. “Does protecting free speech mean allowing people to wreck a soldier's funeral? Does equal protection require taking away promotions that have already been promised? The answers may still be yes, but Alito reminds us that this stirs real anger.”

But empathy, to truly become a value worth celebrating, needs to extend to folks that are different, separate, other. And this, Bazelon argues, is where Alito fails.

Full post as published by Law Blog - WSJ.com on March 21, 2011 (boomark / email).