WITH the latest legal challenge to Obamacare coming to their courtroom in early 2015, and with arguments over same-sex marriage likely to follow, the nine justices will soon decide whether to roll back rights and benefits that millions of Americans already enjoy. Cancelling tax subsidies for some 8m low- and moderate-income Americans or stripping gays and lesbians of a right to wed in dozens of states would fuel the ultimate summertime rewrite of “The Grinch Who Stole Christmas.” Such rulings would be stunning, but not out of place for the most conservative Supreme Court we have witnessed in decades. But they may point to a deeper problem in the Court, says Dahlia Lithwick in the New Republic. The justices, she argues, are no longer equipped to understand how their decisions affect average Americans. This decline in judicial empathy is a function of the increasing insularity of the men and women in black. “[T]he Court as a whole,” she writes, “has gotten too smart for our own good.” All nine of the justices went to law school at either Yale or Harvard (though Justice Ruth Bader Ginsburg graduated from Columbia). Eight sat on a federal appeals court, and five were law professors. So despite the Court’s increasing ethnic and gender diversity (three justices are women, one is black and one is Latina), the cloistered Court does not include much “diversity of experience”. The Court therefore has huge “blind spots” when considering what effects its rulings will have on the lives of ordinary Americans.

The justices are indeed the products of elite colleges, law schools, clerkships and federal judgeships—they are "thoroughbreds," in Ms Lithwick’s apt characterisation. But a cloistered career does not necessarily portend a lack of empathy with the hoi polloi. Ms Lithwick herself cites Justice Sotomayor’s impassioned dissent last spring in Schuette v Coalition to Defend Affirmative Action, which “puncture[d] the force field of hyper-legalism” with a “deeply personal” account of how race and racism continue to plague minorities in America. Similar examples from recent Court history show how empathy figures into some of the justices’ jurisprudence. In 2007 Justice Ginsburg wrote a dissent in Ledbetter v Goodyear Tire & Rubber Co in which she explained how the “realities of the workplace” affect women who face wage discrimination. That same year in Parents Involved v Seattle School District, when the Court voted 5-4 to stop Seattle from considering race when assigning students to high schools, Justice Stephen Breyer delivered a magisterial dissent:

Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty.

These doses of judicial empathy, delivered in oral dissents from the bench, were inflected with personal experience: Justice Sotomayor spoke from the heart in reporting how “race matters”; Justice Ginsburg’s analysis came from a woman who faced sexism in her own career; and Justice Breyer’s father worked as a lawyer for the San Francisco public schools. And it’s not just the liberals who show signs of empathy in their decision-making. Justice Anthony Kennedy’s opinions in Lawrence v Texas and United States v Windsor, two gay-rights cases, were premised on respecting homosexuals’ “dignity as free persons”. Justice Clarence Thomas, the second African American to take a seat at the Court and its staunchest conservative, drew on his experience at Yale Law School in Grutter v Bollinger and Fisher v University of Texas to conclude that affirmative action is well-intentioned but ultimately harmful to racial minorities. “I think the lesson of history is clear enough,” he wrote in his Fisher concurrence. “Racial discrimination is never benign.”

Regardless of how one feels about the outcomes in these cases, it is clear that the justices’ personal lives informed more nuanced, more compelling opinions than would have been possible absent that experience. But Ms Lithwick is right to suggest that the justices’ perspectives are too often hindered by the fact that “the pool of those with whom they unavoidably identify is so dangerously small and privileged”.

Consider last term’s Town of Greece v Galloway,a case in which two residents of Greece, New York, objected to their town’s practice of holding mostly Christian prayers at the beginning of monthly town-board meetings. Justice Anthony Kennedy couldn’t quite find his way into the shoes of the Jewish and atheist respondents, as his written opinion makes plain. “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” Justice Kennedy wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.” In other words, unless truly aggressive bible-thumping is going on, religious dissenters have no constitutionally cognisable complaint when their town makes them feel like outsiders.

I noticed a more subtle but still striking moment of blinkered justice while watching the oral argument last month in Holt v Hobbs, a case asking whether a Muslim inmate in Arkansas named Gregory Holt had a right, contrary to the prison's grooming policy, to grow a beard for religious reasons. The Supreme Court is made up of three Jews and six Catholics; no Muslim has ever joined its ranks. So no one had direct knowledge of why a Muslim man may feel religiously obligated to grow a beard, or what that obligation entails. The fact that Mr Holt is willing to compromise with prison authorities to grow a beard that is only one-half inch long inspired an exchange in which Justice Antonin Scalia plainly second-guessed Mr Holt's faith. Douglas Laycock, Mr Holt's lawyer, had just argued that his client should not be penalised for being reasonable:

JUSTICE SCALIA: Well, religious beliefs aren't reasonable. I mean, religious beliefs are categorical. You know, it's God tells you. It's not a matter of being reasonable. God be reasonable? He's supposed to have a full beard. MR. LAYCOCK: He's­­—he's supposed to have a full beard, but a partial beard is better than none. And that's not just in secular terms. That's also in religious terms, which he explained on the record.

Justice Scalia’s response was wryly dismissive:

JUSTICE SCALIA: We've got to assume all 1/2-­inch beards are—are okay if—if God tells you to grow them, right?

Justice Scalia’s question was greeted with a few snickers in the courtroom. Spectators readily chuckled over the ludicrous thought that God might deign to tell believers how long their beards ought to be. Yet Justice Scalia’s scepticism radar was remarkably silent at the Burwell v Hobby Lobbyhearing last spring, when the question was whether a fundamentalist Christian should be exempt from Obamacare’s contraceptive mandate. Indeed, he and his fellow conservative justices readily deferred to the argument that morning-after pills and intra-uterine devices are equivalent to murder weapons, even though many scientists have rejected this position.

All nine justices seem ready to uphold the Muslim inmate’s right, so the implications of Justice Scalia’s condescension will likely remain rhetorical and symbolic in Holt v Hobbs.Still, the empathy gap is worrisome in light of the upcoming showdowns over health-care benefits, marriage rights, voter-ID laws and abortion restrictions.

But for all the relevance of personal experience in recognising the complexity of some of these cases, there's only so much diversity in personal experience nine intellectual wizards can have. The Supreme Court is not a representative institution, and I’m not sure it’s a terrible thing that justices all go to great law schools. The biggest worry for me is not insularity but empathic incapacity, which could have a significant impact on many people’s lives. Let's hope that in listening to the parties and weighing these big pending decisions, the justices are able to summon up thoughts of those who lead lives rather different from their own.