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Monday, March 07, 2011

Stevens and Snyder, empathy and sympathy

In my immediate response to last week's decision in Snyder, I argued that the decision had to be seen as of a piece with last term's decision in United States v. Stevens (striking down a ban on the sale of videos depicting animal cruelty). And I think there may be something to this. The starting point for the comparison, of course, is the line-up: Chief Justice Roberts writing for an eight-person majority (Kagan replacing Stevens in the recent case) and Justice Alito as the lone dissenter. Paul last week discussed Steve Shiffrin's argument that one similarity is Roberts' too-simplistic approach to the First Amendment and his refusal to grapple with the competing interests at stake.

Now Michael Dorf argues that what is at work in Alito's lone dissents is empathy. More than his colleagues, Justice Alito feels for those (human or otherwise) injured or harmed by speech and his feelings play a role in that analysis. Dorf attributes this, in part, to Alito's pre-judicial experience as U.S. Attorney--a theory also expressed by a friend and colleague who  is a former Alito clerk and prosecutor--where direct experience with concrete impacts makes one more attuned to them and thus more emphathetic. Dorf also uses his post to make the point--too-often lost--that conservative justices are as influenced by feelings for someone involved in the case as are liberal justices, just at different points.

If that is what is going on for Alito, it is, once again, not empathy at work, but sympathy (although the former is often the starting point for the latter). Alito is not only understanding what the victims feel, but deciding out of compassion or affinity for those feelings. Either way, the words of the First Amendment, and even First Amendment doctrine, are not doing all the work for either Roberts or Stevens. This may have some interesting explanatory force.

A quick, unrelated point: If Dorf is right that Alito's experience as a prosecutor is affecting his First Amendment views, it lends an additional perspective for Marc's idea on the more-limited role that speech plays in the criminal context.


Posted by Howard Wasserman on March 7, 2011 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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See also, his Ricci v. Stefano concurrence.

The dividing line here between empathy and sympathy is unclear but either way, it appears to be there/here. Since I think such things are part of interpreting the law, I don't mind. The fact that a model justice of Obama's critics is using is unsurprising.

I didn't really take them seriously when they raised the phony issue and this only reaffirms my reaction.

Posted by: Joe | Mar 7, 2011 10:15:52 AM

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