Empathy Uber Alles

I can’t believe I’m having this conversation:

I’m actually 100 percent positive that were Oprah on the Supreme Court she would do a good job. In a lot of ways, it’s just not that difficult a job. You need a reasonably intelligent, public-spirited individual who’s aware of their own limits and does a good job of hiring clerks. To be a truly great justice requires more than that, but it’s not as if putting a TV personality on the court would lead to her making “wacky judicial bloopers” or something. The difficult, controversial cases that come before the Supreme Court are precisely the cases where the answer isn’t in your bar exam study book. — Matt Yglesias

One in six Americans would appear to feel similarly. And why not? If Terry McAuliffe can become Governor of Virginia, surely Oprah can don the Robes of Power. At The Plank, Josh Patashnik tries a rebuttal, but seems mostly to dig us in deeper:

it’s true that a handful of the cases the Court hears do concern controversial political issues on which the relevant legal test is an ad hoc balancing inquiry in which Oprah’s views would carry as much weight as anyone else’s. But, even assuming these are the only cases one cares about, I would be hesitant to conclude that therefore a non-lawyer could serve just as effectively. Under what theory of judicial legitimacy would the public be expected to accept Oprah’s pronouncements on these questions as binding the hands of its elected representatives? The advantage of having boring old judges with fancy legal degrees on the Court is that it helps take these essentially political questions and makes them seem like legal questions requiring expertise—hence the elaborate edifice the Court has built of tiers of scrutiny, fundamental rights, and all the rest, disguising the very un-technical value-weighing going on beneath.

Ah, well, problem solved! With a Court like this, who needs Oprah? Not even the High Priestess of Catharsis can transubstantiate emotional preferences into unimpeachable nerdery. The untold story in all this ‘empathy’ business is that emopolitics and technocracy actually go hand in hand — and not just as division of labor. Patashnik is right that the Law is increasingly becoming a trade language kept complex enough to intellectually credential attitudinal fiat, but this turn of events only reinforces our cultivated delight in The Exception. Forget Oprah, let’s put Whoopi on the Court! Boy, would she shake up those fuddy-duddies. She’d have them dancing in no time! Not to mention overturning some atavastic old rule that everyone thinks is silly but knows, alas, is constitutional. And then business as usual until the sequel. As Rorty has said, liberal flourishing is long periods of boring technocracy punctuated by exciting, hope-fueling spasms of progress by decree . . .