Bench Memos

Obamacare Primer

There is so much being written about the Obamacare case that I’m not going to try to separate the wheat from the chaff. But for anyone interested in an intelligent overview, I’d strongly recommend Adam J. White’s cover article—“Without Precedent”—in the new issue of the Weekly Standard. (White comes down in favor of a ruling invalidating the individual mandate, but I think that folks on both sides (or neither side) of the matter will find his article informative.)

As the first person to highlight President Obama’s notorious “empathy” standard (in this March 2008 Weekly Standard essay), I will offer one ancillary quibble: The reader might be misled into thinking that Obama himself never used the word “empathy” to describe the judicial quality that he thought was decisive in determining the meaning of the Constitution in the “truly difficult” cases. In fact, Obama stated (in explaining why he was voting against John Roberts’s confirmation as Chief Justice) that the “last mile” of legal analysis in the “truly difficult” cases “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.” And in campaigning for president, he declared:

we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. All right?

(See the fuller quotations here.)

White, I’ll note, also had an interesting review of a new biography of Judge Henry Friendly in the Wall Street Journal over the weekend, as well as a recent Commentary essay (subscriber-only access) titled “The Lost Greatness of Alexander Bickel,” which provides an insightful review of the legacy of the longtime constitutional scholar and critic of the Warren Court.

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