National Review Online blogger Ed Whelan has frequently misinformed in order to attack President Obama for saying that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law." So, when the Huffington Post published a piece highlighting that conservative Supreme Court Justice Samuel Alito appeared to rely at least in part on empathy in writing a lone dissent in Snyder v. Phelps -- a case dealing with the extent of Westboro Baptist Church's First Amendment right to protest near the funeral of a deceased Marine -- it didn't take long for Whelan to go on the attack.
In a piece claiming that the difference between the eight-justice majority opinion and Alito's dissent is "a legal one, not a difference between dispassion and empathy," Whelan -- a former Supreme Court clerk and high ranking Justice Department official -- points out that Alito cited the Supreme Court case of Chaplinsky v. New Hampshire to say that the First Amendment does not shield utterances that "form 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' "
Whelan adds that "as Alito saw it, an abusive attack on a private figure rather than speech on a matter of public concern -- 'the First Amendment should not interfere with recovery.' "
Therefore, Whelan suggests, empathy played no part in Alito's coming to a different conclusion than all the other justices. But that only makes sense if you ignore much of what Alito wrote as well as Alito's own statements about how he views his role as a judge.
Alito himself has suggested that empathy plays a role in his judicial decision-making. During his Supreme Court confirmation hearing in 2006, Alito stated that while it was his "job to apply the law ... not to change the law or to bend the law to achieve any result," "[w]hen I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
And Alito's empathy is very much in evidence in his dissent in Snyder v. Phelps.
After citing Chaplinsky and one other case, Cantwell v. Connecticut, Alito wrote more than 1,200 words without quoting the Constitution or another precedent. Much of that portion of Alito's opinion was devoted to a recitation of the specifics of Westboro's attack against Snyder and his family. The long exposition seemed unnecessary to making the legal point that the speech was "an abusive attack on a private figure rather than speech on a matter of public concern." One or two examples of Westboro's attacks would be enough to make the legal point.
Furthermore, Alito ended his opinion on this empathetic note:
Respondents' outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.
In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.
I am not trying to say that Alito was supplanting the law with an empathy standard. (Nor am I making an argument about whether Alito or the majority had the better argument.) No reasonable person -- including President Obama -- wants judges to ignore the law when it leads to unempathetic results. Rather, it's precisely the point that fealty to the law and empathy are not mutually exclusive concepts.