Dear Walter and Paul,
It was somewhat cheering, sitting here in the Senate again today, to learn that Elena Kagan hasn't yet read all the opinions in yesterday's cases. I still have much to say about McDonald and Bilsk but have time only for a quick post right now on Kagan and the Christian Legal Society. Based on yesterday's comments at the Kagan hearing yesterday, you really might believe that empathy is second only to drunkenness and insanity when it comes to disqualifying factors for a Supreme Court justice. You might also come to believe that empathy is a sin committed solely by liberals and solely in the service of "the little guy," whoever that may be.
So there was Sen. Jeff Sessions warning in his opening statement that "President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their "broader vision of what America should be." Sen. Chuck Grassley accused Kagan of measuring up to the president's "judicial"empathy" standard—a judge's ability to "empathize" with certain groups over others." He went on to say the "'empathy' standard has been soundly rejected because it endorses the application of personal politics, feelings, and preferences when judges decide cases." Then Grassley warned Kagan that "judges and justices are supposed to check their biases, personal preferences, and politics at the door of the courthouse, so they can administer justice in an evenhanded manner." Then came Sen. John Kyl, explaining to the nominee that last year at this time, Justice Sonia Sotomayor explicitly rejected the "empathy" standard espoused by President Obama—a standard where "legal process alone" is deemed insufficient to decide the so-called "hard cases," a standard where the "critical ingredient is supplied by what is in the judge's heart." Kyl went on to excoriate the president for implying that "at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging."
All right then, fine, empathy is the worst. But reading Justice Samuel Alito's very heartfelt dissent in yesterday's Christian Legal Society case suggests that improper empathy is cropping up all over. At issue was the decision by University of California-Hastings' law school to deny formal "registered student organization" status to a group of Christian students who would not allow gay law students to join. As Walter noted in his very first post, the case pitted the group's First Amendment speech and association rights against the school's anti-discrimination policy (or policies). Writing for the majority, Justice Ruth Bader Ginsburg declared that Hastings' denial of RSO status to the Christian Legal Society did not violate the group's constitutional rights and that the group was not being singled out for persecution but rather seeking an impermissible exemption from the school's open-to-all-comers policy.
You can agree or disagree with Justice Ginsburg on the law, and the court decided the case by a 5-4 margin. But I just want to ask you both what you make of Justice Alito's dissent in this case. He opens by stating that while the First Amendment is intended to protect "the speech that we hate," in this instance the court "rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning." Alito goes on to detail all the ways in which the student group was stonewalled, denied privileges, and singled out for mistreatment at the hands of the administration. Alito is horrified at the majority's suggestion that the denial of RSO status "did not hurt CLS at all." He says "this court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad." He explains that a true "accept-all-comers policy permits small unpopular groups to be taken over by students who wish to change the views that the group expresses." Alito closes by writing that, "Even those who find CLS's views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration."
Again, we can agree or disagree on the merits of the First Amendment claim, but my thought is simply that if Alito isn't also at pains to empathize with the "little guy" here, I don't know who is. Justice Alito is so worried about the discrimination faced by one disfavored student group, he almost misses the purpose of the anti-discrimination rule, which is to protect other disfavored groups. As Justice John Paul Stevens observes in a footnote in his concurrence, "Although the dissent is willing to see pernicious antireligious motives and implications where there are none, it does not seem troubled by the fact that religious sects, unfortunately are not the only social groups who have been persecuted throughout history simply for being who they are." I wanted to remind Jeff Sessions of this same point today as he hammered away at Gen. Kagan for being disloyal to the men and women who serve this country. Why are some kinds of discrimination worthy of great empathy, and others are somehow illegitimate?
I want to be clear that I have no problem at all with Alito's expression of upset at how "this group has been treated," and I believe there is a place for that kind of analysis on the bench. Alito felt the same solicitude for the anti-gay-rights petition signers in Doe v Reed, the Washington ballot-initiative case, who could be subject to harassment and retaliation. But if this isn't a plea for his colleagues to empathize with one particular disadvantaged and worthy group, I don't know what is. And that makes all the carping about the evils of judicial empathy here in the Senate all the more difficult to stomach.