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John Paul Rollert

John Paul Rollert

Posted: March 16, 2011 04:02 PM

Sam Alito: Setting the "Empathy Standard" for the Supreme Court


For almost two years now, Republicans have issued dire warnings about an urgent threat to the Constitution emanating from the Supreme Court. What is this menace? A Justice's capacity for empathy, what Senator Lindsay Graham has called the "absurd, dangerous standard" by which President Obama has promised to evaluate Supreme Court nominees. Such warnings have generally struck Democrats as politically convenient and intellectually preposterous, but in light of the recent ruling in the Phelps case, they might want to reconsider. We have seen the face of empathy on the Supreme Court, and his name is Sam Alito.

The case involved a lawsuit brought against the Westboro Baptist Church and its infamous pastor, the mortuarial Fred Phelps. For years Phelps and his Westboro Roadshow have been traumatizing the moral imagination of communities across the country with signs like "God Hates Fags," "America is Doomed," "You're Going to Hell," and (just in case you missed the point) "God Hates You." Phelps's stated mission has been to save the nation from God's wrath, but the real question has long been who will save the nation from Fred Phelps?

For a time it looked like the courts. In 2007, a jury awarded Albert Snyder, the father of Mathew Snyder, a Marine killed in Iraq, $11 million in punitive damages after he sued the church for staging a protest that coincided with his son's funeral. Ostensibly, Phelps's reason for protesting military funerals is to underscore his belief that the Almighty is punishing a godless nation by killing its soldiers overseas, but the real motivation has little to do with theology. Phelps is a master of public relations, a kind of a P.T. Barnum meets Count Dracula, and he knows that if he sends his flock to some tragic event to portray it as a further illustration of his twisted theodicy, a tiny church from Topeka will lead the local news.

Such protests are utterly astonishing in their heartlessness -- Phelps, you may have noticed, does not spend much time thinking about the feelings of others -- they are also constitutionally protected speech. So ruled the Supreme Court 8-1, reaffirming a unanimous Fourth Circuit decision to overturn the verdict against Westboro on First Amendment grounds. Writing for the majority, Chief Justice John Roberts neatly summarized the constitutional issue at stake in the case:

Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence. A group of parishioners standing at the very spot where Westboro stood, holding signs that said "God Bless America" and "God Loves You," would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

Such exposure, as a constitutional matter, is unacceptable. "Simply put," Roberts said, "the church members had the right to be where they were," a view shared by every member of the Court but one: Justice Alito.

In his dissent, Alito contended that, whatever the professed aims of the protest, Westboro intentionally "launched a malevolent verbal attack on Matthew and his family." Proving Westboro's intent to harm the Snyder family is key to Alito's argument, as it transforms a public protest into a private attack, ratcheting down the constitutional protection such demonstrations are otherwise afforded. Yet, as the majority opinion makes clear, the facts simply don't support this position. For the Westboro congregants, funerals -- nearly 600 of them -- are occasions to gain free publicity for their enduring prejudices. Who is being mourned is essentially irrelevant.

Alito disputes this point with a verbal ferocity that lays bare his profound sympathy for the Snyder family while leaving one to wonder whether he is not also blinded by it. He begins his dissent by suggesting the majority has "protected respondents' right to brutalize Mr. Snyder" and concludes by declaring "the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he has suffered." In between, he thunders.

This is not the first time Alito has been the odd man out in an 8-1 decision on a First Amendment case. Last year, the case involved a statute aimed at curtailing the sale of "crush videos," so named because they typically involve an unidentified women in high heels crushing small animals. The majority struck down the law for not defining animal cruelty narrowly enough to ensure the likes of Ted Nugent or the crew from Deadliest Catch wouldn't be dragged into court, however it left the door open for Congress to write a more precise law without violating the First Amendment.

Still, Alito felt the need to dissent. The majority, he said, was striking down an "entirely valuable" law that was "enacted not to suppress speech, but to prevent horrific acts of animal cruelty -- in particular, the creation and commercial exploitation of 'crush videos,' a form of depraved entertainment that has no social value." The end of that sentence should give one pause, not so much because Alito is wrong, but because one cringes at the idea of a Justice peremptorily passing judgment on the substantive merits of some act of speech, especially when they are not even at issue in a case.

In the Phelps case, by contrast, the substantive merits of Westboro's views were precisely what was at issue, and once again, Alito was willing to dismiss them outright as "vicious verbal attacks that make no contribution to public debate." In private, one feels pretty confident that John Roberts and the other members of the majority agree with at least the second half of this statement, but then again, as Supreme Court Justices, they are not paid for their private opinions. They are paid to interpret the law impartially.

"Good judges understand that they must meticulously apply the law and the Constitution even if the results they reach are unpopular," Senator Chuck Grassley told Sonia Sotomayor when she appeared before the Senate Judiciary Committee as President Obama's first Supreme Court nominee. Like the other Republican members, Grassley worried that the President's "empathy standard" was at odds with what he called the "most important qualification" for a Justice, "the ability to set aside your personal feelings and political beliefs so you can administer equal justice for all in a dispassionate way."

The President would not disagree, in no small part because his understanding of judicial empathy and the Republicans' "empathy standard" are two very different things. President Obama has been absolutely clear that empathy is a tie-breaker, not a case-breaker. A Justice should rely on it only when what the law demands is fundamentally uncertain, not when it is perfectly clear but also clearly at odds with common decency.

Free speech disputes tend to make for such cases, for they force the Court to reaffirm that the First Amendment was written just as much for a Fred Phelps as a Fred Rogers. As a practical matter, even more so. Sam Alito seems like an exceedingly decent man, and one could wish for a world where the Phelps case was close enough that the felt necessities of conscience might supplement the ambiguities of constitutional law, where the empathy he clearly feels for the Snyder family might fairly rule the day.

But that is not our world, nor is it our Constitution. The First Amendment is clear; 8-1 is not close.


John Paul Rollert is a doctoral student at the Committee on Social Thought at the University of Chicago. His essay Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard" was recently published by the Yale Law Journal Online.