What I don't understand is why we should abandon an ideal simply because it is unattainable. If I can't be a perfect husband, should I get a divorce? If an umpire can't call each game flawlessly, should he stop trying? Maybe for 95 percent of pitches the ump should call 'em straight, but for the other 5 percent he should give the black or gay batters the benefit of the doubt?
In a country this vast, diverse and dynamic, any judicial conception of the little guy is bound to confuse more than it clarifies.
For instance, liberals who like Stevens' rulings insist he understands the plight of the downtrodden, despite the fact that the nearly 90-year-old justice was born rich and has served on the court for almost 35 years, becoming more liberal as he has become more distant from life as lived by the little guys.
Meanwhile, Clarence Thomas was born dirt poor and black in rural Georgia and spends his vacations exploring America in an RV. But those same liberals insist he doesn't understand poverty and race the way Stevens does. How do they know? Because they don't like his rulings.
In other words, the empathy-for-the-little-guy standard is simply a Trojan horse for an approach just as abstract as any endorsed by the right. In fact, I would say it's more abstract because at least there's a text conservatives invoke -- the Constitution -- rather than the indefinable feeling of "empathy."
Unless the plight of every gay, black, poor, old or disabled American is the same, then coming into court favoring a specific category of human being is nothing more than state-sanctioned prejudice.
The benefit of the ideal of impartial justice is that it provides a standard by which judges aren't asked to rule by prejudice. We'll never fully get there, but I don't think we should stop trying.