Nearly fourteen years ago, a deeply conflicted young senator rose to announce his opposition to future Chief Justice John Roberts’ confirmation to the Supreme Court. “There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land,” the senator conceded. “Moreover, he seems to have the comportment and the temperament that makes for a good judge.”

Resume and temperament, however, were not enough. In the toughest cases, “adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon.” How the judge covers the last mile “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

The young senator who spoke these words was Barack Obama, and he spent much of his presidency getting dragged by Republicans who likened Obama’s call for judicial “empathy” to a promise to burn the Constitution and replace it with Das Kapital. Former Sen. Orrin Hatch (R-UT), then the top Republican on the Senate Judiciary Committee, described “empathy” as “a code word for an activist judge.” Several years later, when Obama nominated Chief Judge Merrick Garland to fill a Supreme Court vacancy, then-Senate Judiciary Chair Chuck Grassley (R-IA) attacked the nomination, claiming that “the so-called empathy standard is not an appropriate basis for selecting a Supreme Court nominee.”

Garland, of course, was not confirmed. And President Donald Trump since filled two Supreme Court vacancies with two judges who share Hatch and Grassley’s values. We now live under a high court majority that rejects Obama’s call for judicial empathy.

It shows.

Religious liberty for me, but not for thee

The word “empathy,” it should be noted, does not mean “sympathy.” Sympathy implies a kind of partisanship — to be sympathetic to a party is to be favorable to their claims. Empathy means something else. It is the ability to place yourself in someone else’s shoes and to understand their perspective even if you have not shared their experiences. It is a white Christian man’s ability to see that the world sometimes operates differently for an African-American Muslim.

Which brings us to Dunn v. Ray.

Ray was a suit filed by Domineque Ray, who the state of Alabama executed Thursday evening. Mr. Ray did not contest the state’s power to kill him, he simply asked that Alabama permit his spiritual adviser to be in the execution chamber to comfort him as the state extinguished his life. Ray is a Muslim, and the prison’s policy allowed him to be attended by a Christian chaplain but not by a Muslim imam.


It should have been an open-and-shut case. As Justice Elena Kagan noted in a dissenting opinion, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” If Alabama allows Christian inmates to be attended by a clergy member of their faith, then it must offer the same accommodation to people of other faiths.

The Supreme Court’s Republican majority did not deny this principle outright. Instead, it relied on a narrow procedural technicality. “On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019,” the court’s Republicans concluded. Yet Ray “waited until January 28, 2019 to seek relief.” Thus, he should be denied the right to have his imam present at his execution because he waited too long to file his complaint.

This reasoning is highly dubious. As Kagan noted, the prison did not deny Ray’s request to be accompanied by his imam until January 23 — so Ray filed his lawsuit just five days after he was officially denied the relief he sought. The brief explanation the Republican majority offered for its decision is so wildly out of touch with the facts of the case that, as I wrote shortly after the decision came down, “it appears very likely that the majority’s claim that Ray waited too long to file his suit is pretextual.”

Nor was I alone in criticizing this decision. Neal Katyal, a former acting Solicitor General of the United States who, by virtue of the fact that he practices before the Supreme Court, must be careful about criticizing its judges too harshly, compared the Ray decision to notorious decisions such as “Dred Scott, Plessy v. Ferguson, Korematsu, and the Chinese Exclusion Act cases.” The National Review’s David French labeled Ray “a grave violation of the First Amendment.”


To be fair, there is an explanation for Thursday’s decision that isn’t rooted entirely in anti-Muslim animus. As Will Baude, a conservative law professor and former law clerk to Chief Justice Roberts suggests at the Volokh Conspiracy, the decision may have been rooted — at least in part — in “a mistrust of the death penalty defense bar” and a belief that Mr. Ray could have learned about the prison’s Christians-only policy and challenged it sooner.

Yet even if one accepts this slightly-more-charitable explanation of the majority’s behavior, it’s still hard to read Ray as anything other than a failure of empathy. The Roberts Court tossed out longstanding doctrine to rule in favor of Christian conservatives who object to many forms of birth control in Burwell v. Hobby Lobby. And it seems destined to hold that conservative Christians may defy many anti-discrimination laws. It’s hard to imagine that they would have ruled the same way in Ray if the facts of the case were reversed.

If a Christian inmate were told that he could only have a spiritual adviser of a different faith present during his execution, the court’s Christians would have almost certainly been livid.

Nor is Ray an isolated case. To the contrary, the court’s “religious liberty” cases stand as a monument to its conservative members’ lack of empathy. When religious liberty was primarily invoked by minority religions seeking equal footing an a majority Christian society, the court’s conservatives often looked upon these claims with great skepticism. Yet, when religious liberty claims are brought by the Christian right, the court’s right flank views those claims as transcendent.

Scalia’s transformation

In fairness, conservatives also have a narrative that paints liberals as hypocrites on “religious liberty.” The Supreme Court’s seminal 1963 decision holding that religious objectors should often be allowed to ignore laws that burden their faith, Sherbert v. Verner, was penned by Justice William Brennan — the twentieth century’s Supreme Court’s liberal lion. When the court cut back the scope of religious liberty rights in 1990’s Employment Division v. Smith, conservative Justice Antonin Scalia wrote for the majority. Liberal icons like Brennan and Justice Thurgood Marshall joined a very pointed dissent.


Flash forward to the present, however, and the court’s right flank calls for an expansive interpretation of “religious liberty.” It’s liberal minority — the heirs to Justice Brennan — stand athwart this effort yelling stop. In 2015, right when the battle between Christian conservatives and anti-discrimination laws started to heat up, First Amendment scholar Eugene Volokh wrote about liberals “retreat from the old Justice Brennan/ACLU position on religious exemptions.” Under this narrative, the court’s left abandoned its prior values, leaving its Republican majority to pick up the slack.

Yet this narrative lacks nuance. Yes, Justice Brennan embraced a broad conception of religious liberty in Sherbert, but he also joined the court’s decision in United States v. Lee, which held that “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee involved an Amish employer who refused to pay Social Security taxes. The court held that a religious community’s objections to these taxes may not be invoked to undermine the Social Security system itself.

Justice Brennan’s position, in other words, is no different than the position Justice Ruth Bader Ginsburg articulated in a 2015 concurring opinion. Religious liberty is a core value that should be honored by the courts, but a religious objector’s rights end when their appeal to religious liberty would “detrimentally affect others who do not share [their] belief.”

Yet, while the liberal understanding of religious liberty remained constant from Brennan through Ginsburg, the conservative understanding evolved considerably. Consider Justice Scalia’s opinion in Smith, which abandoned the more expansive understanding of religious liberty pushed by justices like Brennan.

Smith involved two Native Americans who claimed they should be exempt from a state law banning the drug peyote — both used peyote “for sacramental purposes at a ceremony of the Native American Church.” In ruling against these two individuals, Scalia did not simply reject the expansive vision of religious liberty embraced by Brennan, he openly mocked it.

“To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling,'” Scalia wrote, would permit that individual “by virtue of his beliefs, ‘to become a law unto himself.'” Such a rule, Scalia claimed, “contradicts both constitutional tradition and common sense.”

And yet, nearly a quarter century later, Scalia joined the court’s opinion in Hobby Lobby, embracing a vision of religious liberty that was so expansive it would have made Justice Brennan blush.

What happened? What led Scalia to mock the Native Americans’ claim in Smith, then turn around and endorse a much broader theory of religious liberty while he was in the twilight of his career?

One possible explanation is that Congress hated Scalia’s opinion in Smith, and it soon passed a law — the Religious Freedom Restoration Act (RFRA) — which sought to overturn Smith and restore the rule embraced by Justice Brennan in Sherbert. This explanation, however, falls short. RFRA merely restored Brennan’s understanding of religious liberty. It did not embrace the novel legal rule articulated in Hobby Lobby, which allows religious objectors to undercut the rights of third parties.

No, Scalia’s transition from Smith to Hobby Lobby cannot be explained by a change in the law. But it can be explained due to a factual distinction between the two cases. Smith was a case about Native Americans who belong to a faith that Scalia did not share. Hobby Lobby, by contrast, was brought by conservative Christians — and Scalia was also a conservative Christian.

Conservatives’ evolution on religious liberty, in other words, is best understood through their lack of judicial empathy. When the members of a Native American faith sought a religious exemption from the law, Scalia recoiled. When a Muslim inmate asked to have his imam present at his execution — or, for that matter, when Trump banned many Muslims from entering the United States altogether — the Court’s right flank does not see the virtue in these claims. Yet when a Christian conservative employer does not want provide their employees with birth control coverage — or when a Christian conservative baker refuses to serve a gay couple — the court’s Republicans are suddenly up in arms.

It’s possible this disparate treatment of Christians and Muslims is rooted entirely in animus, but that’s probably not the best explanation. The Roberts Court did, in one unanimous case, permit a Muslim inmate to grow a short beard over the objections of prison officials.

Instead, the best explanation is that the Supreme Court’s Republicans simply lack sufficient empathy to see the common humanity they share with Muslims. When a Christian brings a religious liberty case, that case activates the five Republicans’ Christian identity, so those Republicans see themselves in the Christian plaintiff.

But when a Muslim plaintiff brings a similar case, the court’s right flank feels nothing.