ObamaCare: Without Precedent

Without Precedent

Ordinarily, judges decide cases by applying the text of laws and the precedents laid down in previous cases. But the Supreme Court is no ordinary court, and the cases that it chooses to decide are not ordinary ones. Cases in which the lower courts disagree; cases of utmost national importance; cases for which there is little precedent or the written law is ambiguous​—​this is the Supreme Court’s daily fare.

But even among those hard cases, there is a subset that stands out. In late 2005, Barack Obama, then a freshman senator, placed those extraordinary cases at the center of his opposition to John Roberts’s nomination for chief justice:

What matters on the Supreme Court is those 5 percent of cases that are truly difficult. .  .  . [T]he constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances .  .  . the critical ingredient is supplied by what is in the judge’s heart.

When President Obama began nominating Supreme Court justices, those remarks from his Senate days were distilled into a one-word description of what he was looking for—“empathy”—that made clear his preference for judges predisposed to decide cases in favor of Obama’s political sympathies. Obama was in no position to complain that his views were being caricatured, given that his own opposition to Roberts ended with a crude diatribe against Roberts’s personal values. Still, despite his liberal clichés, there was truth in his point. When text and precedent are inconclusive, the justices’ decisions rest in part on “one’s deepest values, one’s core concerns,” and “one’s broader perspectives on how the world works.” Not “empathy”—not personal bias for or against particular litigants—but certainly an appreciation for the fundamental principles that undergird our constitutional structure.