Jonah, that’s a very good point. “Empathy” seems to me to be defining activism down. I can’t say I care for it, but at least “activism” requires a certain art — the ability to detect in 18th-century parchments that a bunch of guys in powdered wigs had cannily provided for partial-birth abortion or gay marriage or whatever. By contrast, “empathy” absolves you of the need to bother with any pretzel-like argument and lets you simply announce your bias, as Judge Sotomayor did in the Ricci case, like the schoolkid who knows the right answer but can’t work out how to get to it.
Justice Sotomayor will not be good news for the United States constitution.