More on Justice Alito’s Solo Dissent in Snyder

March 7th, 2011

Last week I commented on Justice Alito’s lone dissent in Snyder v. Phelps, and noted that there seems to be a certain emotional tug in his decisionmaking process:

Whether evoking images of cute cuddly kitties getting stomped, or Albert Snyder’s tortuous time during his son’s funeral, Justice Alito wears his heart on his sleeves. And these emotional appeals tug heavily on his jurisprudence.

There has been a bit of an echo, with a few other bloggers making similar points.

At Dorf on Law, Michael Dorf reasons that it is–wait for it–empathy guiding Justice Alito’s decisions!

Justice Alito is more moved by empathy for victims of hurtful speech than are his conservative (and liberal) colleagues. What distinguishes Justice Alito’s position from that of the majority in both Stevens and Snyder is the clear depth of feeling he expresses for the victims of the speech–animals subject to cruelty and grieving family members, respectively.  He writes in Stevens that “[t]he animals used in crush videos are living creatures that experience excruciating pain.”  In Snyder he repeatedly talks about the harm inflicted on the Snyder family in terms that draw no distinction between words and a physical attack.  Although the majority in each case takes pains to distance itself from the respective free-speech claimant, a fair reading of the opinions makes clear that Justice Alito feels more for the victims, or at least permits his feelings to play a larger role in his legal analysis than the rest of the Court does.  In a word, his emerging free speech jurisprudence displays greater empathy than does the jurisprudence of the rest of the Court

At PrawfsBlawg, Howard Wasserman shares some personal (albeit second-hand) insights into Justice Alito, and contends it is sympathy, and not empathy:

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. . . . 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.

Jeff Rosen contends that Justice Alito is the Supreme Court’s privacy cop, and his opinions are grounded in a desire to defend the right to privacy.

More than any other justice, Alito is emerging as a stalwart defender of privacy, particularly in cases with strong free speech interests on the other side. He cares more about the government’s ability to protect a range of privacy values – including dignity, anonymity and community standards of decency – than anyone else on the court.

As a privacy defender, I find that Alito sometimes goes too far in favoring privacy over free speech, even for my taste (like the man on the Titanic who said, “I asked for ice, but this is ridiculous”). Yet his emergence as a guru on these issues should come as no surprise. As a Princeton student in 1971, Alito chaired a student conference on surveillance, data-gathering and privacy, which produced a sweeping report declaring that “we sense a great threat to privacy in modern America” and that “privacy is too often sacrificed to other values.”

All this suggests that Alito’s defense of privacy is part of his broader tendency to be deferential to Congress, state legislatures and local communities. . . . Nevertheless, far from becoming the Scalia clone some predicted, Alito recognizes the fundamental value of privacy and has distinguished himself from the court’s other conservatives. Civil libertarians may worry that he goes too far defending privacy over free speech, but his emergence as a privacy champion is especially welcome on a court where there are few consistent advocates for the communal values that privacy protects.

Is it empathy, sympathy, or privacy? Or does he just like cute kitties and hate funeral protests? I’m not sure how to characterize these decisions, suffice to say that these emotionally charged cases are not decisions that an umpire would necessarily make.