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 (holding it unconstitutional in an opinion written jointly by Republican and Democratic appointees), the Sixth Circuit decision (holding it constitutional by a 2-1 vote, with the deciding vote provided by a Bush 43 appointee), and the D.C. Circuit decision (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 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 (with 42 percent “strongly” favoring repeal) — will be to change the President (and the majority in the Senate) so they can do so.