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.