I’m no legal scholar type guy, but it seems to me that “empathy” and “activism” are being overly conflated (not least because they co-exist in the judicial philosophies of Sonia Sotomayor and Barack Obama). They certainly overlap, but are they the same thing? If you go by the conventional news coverage and various Republican talking points, you’d think empathy is just a codeword for activist. But I don’t see it that way, at least not entirely.
The “empathy” thing strikes me as a warrant for bias (which is an ancient problem) not judicial activism (a more recent, or at least more specific, phenomenon). And, as it applies to identity politics, it is a form of racism and/or sexism. For instance, Obama wants judges to side with members of the Coalition of the Oppressed in the really tough cases. That needn’t be a call for judicial activism. Rather, it’s a call for bias — in favor of the status quo.
Indeed, if you look at the Ricci case, Satomayor’s actions seem exactly like a reactionary defense of the status quo. The existing legal regime is to her liking because it sustains a racial spoils system that discriminates in favor of preferred minorities. The Ricci case threatens the existing system. Sotomayor’s shameful attempt to bury it aside, was her substantive ruling against Ricci judicial activism — making policy from the bench — or was it the equivalent of judicial wagon-circling? It seems to me it was closer to the latter.
Now it seems to me that she’s an activist as well, for reasons explored by others around here. But my point is simply that judicial activism and bias toward preferred groups are not the same thing. The distinction would be easier to see if we lived in the 19th century when believers in judicial restraint rejected activism in the name of white supremacy. The logic for “empathy” today is quite similar, but since it’s in defense of fashionable racism, it’s harder to see. Still, as it was in the 19th century, you can see how the process of rationalizing bias can metastasize into a larger and cancerous philosophy justifying either activism or restraint, as circumstances require.