RUTHFULLY YOURS

When Chief Justice John Roberts and his fellow Supreme Court justices review Obamacare next year, it will be a moment of supreme irony.

The Roberts Court will decide the constitutionality of President Obama’s signature legislation under the Commerce Clause, since the law was cast as a regulation of interstate commerce, although it was actually a massive new government entitlement, using an unprecedented individual mandate to provide insurance companies the funds to administer it. Appellate courts across the nation have struggled with the issue, producing opinions in six different circuits covering a total of 654 pages, using diverse analyses to reach conflicting decisions (and usually split ones), necessitating Supreme Court review.

How should the Justices approach the issue Obamacare presents? What judicial philosophy should they bring to the question? The answer to that question may require the resolution of an issue raised six years ago — in a confirmation proceeding involving a new senator seeking to justify his vote against an indisputably qualified nominee.

The nominee was John Roberts, and the senator was Barack Obama.

Roberts’ qualifications for the Supreme Court were remarkable. He had graduated from Harvard College, summa cum laude, in three years. He graduated from Harvard Law School magna cum laude, serving as managing editor of the Harvard Law Review. He clerked on the Second Circuit Court of Appeals and then for Supreme Court Chief Justice Rehnquist. He served as associate counsel to President Reagan and then as the Principal Deputy Solicitor General of the United States, arguing 29 cases before the Supreme Court. After leaving government, he joined a prestigious Washington law firm, focusing his practice on federal appellate litigation.

In 2003, he was appointed to the D.C. Circuit Court of Appeals (subsequently writing 49 opinions that produced two dissents). During his 2003 confirmation proceeding, 156 prominent members of the D.C. bar — including prominent Democrats such as Lloyd Cutler (White House counsel to Presidents Carter and Clinton), Seth Waxman (Clinton’s Solicitor General), and Walter Dellinger (another Clinton Solicitor General) — submitted a letter stating:

[We are] united in our belief that John Roberts … is one of the very best and most highly respected appellate lawyers in the Nation, with a deserved reputation as a brilliant writer and oral advocate … [with] unquestioned integrity and fair-mindedness — [representing] the best of the bar.

In 2005, Barack Obama voted against Roberts, while acknowledging he was qualified to sit on the Court. In his speech ^[1] announcing his vote, Obama said Roberts had “the comportment and the temperament that makes for a good judge.” He was “humble, he is personally decent, and he appears to be respectful of different points of view.” He “truly loves the law” and had an “excellent record as an advocate before the Supreme Court.” Obama had been impressed in a personal meeting with him:

[I]t became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence [sic], a certain modesty in reading statues and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system.

But in Obama’s view “the problem” was the remaining five percent of the cases — which Obama thought should ultimately be decided not by the law, but by the heart, because in Obama’s view the law and legal process would only get you so far:

In those [remaining] cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy. In those five percent of hard cases, the constitutional text will not be directly on point. … Legal process alone will not lead you to a rule of decision. [Emphasis added].

Obama made it clear he felt the Commerce Clause was one of the constitutional provisions that lent themselves to decisions based on deepest values, core concerns, broader perspectives, and empathy:

In those circumstances, your decisions about [such issues as] whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce … the critical ingredient is supplied by what is in the judge’s heart. [Emphasis added].

Obama concluded that the deciding factors in voting on the nomination were not Roberts’ qualifications, comportment, temperament, personal decency, love of the law, respect for different points of view, record as an advocate before the Court, and deep respect for the basic precepts that go into deciding the cases. Rather the key was what Obama thought was in Roberts’ heart – his “overarching political philosophy.” Obama said he would thus vote against Roberts, albeit with “considerable reticence” (since his remarks ran 1471 words, “reticence” was probably not the word he was looking for).

Obama’s list of controlling considerations was actually a list of the things a judge should not use in deciding a case. A judge’s deepest values, core concerns, broader perspectives, empathy, and overarching political philosophy have nothing to do with the legal issue presented by a case. A judge owes the litigants and the legal system a duty of excluding those considerations from his decision.

Whichever way he votes, it is unlikely Chief Justice Roberts will be using those standards. The irony is thus that while a majority on the Court probably does not share Obama’s political views (dressed up as deepest values, core concerns, etc.), Obamacare may nevertheless prevail. As the Eleventh Circuit opinion ^[2] (holding it unconstitutional in an opinion written jointly by Republican and Democratic appointees), the Sixth Circuit decision ^[3] (holding it constitutional by a 2-1 vote, with the deciding vote provided by a Bush 43 appointee), and the D.C. Circuit decision ^[4] (holding it constitutional in an opinion written by a Reagan appointee) show, the issue is a constitutional one, not a political one, despite the standards Obama has sought to apply to the Court. And as this debate ^[5] demonstrates, the issue is a close one.

There is also a political irony whatever way the Court ultimately decides. If it holds Obamacare unconstitutional, Obama’s attempt to “transform” the country will have been repudiated as a matter of constitutional law. But if it holds Obamacare constitutional, Obama’s political peril may be greater: the only recourse for voters — who currently support repeal of Obamacare by a 57-35 percent margin ^[6] (with 42 percent “strongly” favoring repeal) — will be to change the President (and the majority in the Senate) so they can do so.