Ruth Marcus at the WaPo attempts to provide some definition to the empathy standard.
Possessing the “empathy to recognize” should not determine the outcome of a case, but it should inform the judge’s approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy law, told fellow justices — and even a gay law clerk during that very term — that he had “never met a homosexual.” Would the outcome of Bowers — an outcome Powell regretted within a few months — have been different if the justice had known men and women in same-sex relationships?
When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.
And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.