Here's what happens when you pick Supreme Court Justices based on "empathy."
Facts: An HIV-positive prisoner (Anthony Pitre) is transferred to a prison where all inmates are required to do hard labor. He doesn't like hard labor and so, in protest, he refuses to take his HIV meds. As a result, he's less fit for hard labor. But prison officials say: "too bad, you still have to do hard labor like everyone else." Pitre then sues the prison for "cruel and unusual punishment" in violation of the Constitution.
The magistrate judge dismisses the claim as "patently frivolous." The federal district court agrees. The Fifth Circuit agrees. Eight Supreme Court Justices refuse to hear the case -- with Justice Sotomayor dissenting. In a 4-page dissent (highly unusual for a routine denial of certiorari), Sotomayor argues that Pitre had demonstrated that prison officials acted with "deliberate indifference" in violation of the Eighth Amendment. (h/t Orin Kerr at Volokh)
Poor Sonia Sotomayor, she seems to be in over her head. Perhaps I'll send her an empathy card.