Dahlia Lithwick has recently complained that the Supreme Court is made up of elites. Hers is not the usual complaint of conservatives that the justices are writing their elite values into the Constitution rather than following the law. It is rather that the justices evince selective empathy—only for elites. According to Lithwick, we need justices who will decide in favor of non-elites on empathetic grounds.
If justices were to follow Lithwick’s advice, the rule of law would disappear. Particularly in disputes that rise to the level of the Court, both parties may deserve empathy. For example, Lithwick praises Sonia Sotomayor’s defense of preferences in Schuette v. Coalition to Defend Affirmative Action. And surely minorities striving for success who may gain admission to elite colleges because of such programs deserve our empathy. But why don’t those who are denied a place because of their race deserve our empathy as well? Feeling provides no plausible rule of decision.
In fact, because empathy tends to focus on the seen rather than the unseen, à la Bastiat, it can profoundly mislead us. The most visible parties affected by a dispute are likely to command our empathy, even if many more not present are harmed by the empathetic decision. Similarly, empathy may favor the static over the dynamic. The first year of law school emphasizes the importance of the secondary and tertiary consequences of a decision. Setting aside the terms of a contract on the grounds of empathy for a poor and sympathetic debtor will make it harder for the poor in general to get credit in the future. Even if judges were to decide on what they regard as the best consequences, they must set aside simple empathy for more far reaching calculations.
Lithwick notes that Justice Kennedy’s opinion in Citizens United was “a beautiful work of abstract reasoning,” but then suggests that he decided on the basis of empathy for the rich and their interest in influencing elections. But it is precisely the consistency of his abstract principles that suggests otherwise: in every other First Amendment context, corporations receive protection under settled doctrine. There is thus no principled reason to make an exception for political messaging. Such neutrality also applies to corporations like The New Republic, which published Lithwick’s essay. Should the dissemination of her views depend on the feelings of the mix of justices on the Court? If so, our most fundamental rights would be based on the shifting sand of human passions.
And this danger shows what is ultimately wrong with Lithwick’s arguments. Our rights are protected by the very imperviousness of justice to the kind of emotional appeals she encourages. The Constitution, it is said, protects “Peter Sober” against “Peter Drunk.” It will not perform that function if justices are also inebriated with their own sense of righteousness. In the Federalist 78, Alexander Hamilton recognized that there would be only a relatively few people qualified to be entrusted with judging. They must have “skill in the laws”: and “unite the requisite integrity with the requisite knowledge.” Their knowledge gives them the capacity to apply the law as written and their integrity the motivation. Empathy provides neither.