One point I didn’t emphasize enough in my column is Obama’s notion that the law and precedent should rule in “95 percent of the cases,” but in the other 5% Justices should go with their heart. Obama says: “In those 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.”
Put aside for a moment whether you take Obama’s words at face value or whether you think this is all code for judicial activism. What gets lost here is this 95% of the time thing. Try to add up all the famous and controversial cases you can think of. Marbury v. Madison, Plessy, Schecter, Brown, Miranda, Casey, etc etc. My guess is that even for a fairly informed person, all of those cases don’t add up to much more than 1% of the lifetime caseload of the Supreme Court. But even if they add up to 5%, that’s still pretty much all of the divisive, culture-changing, economy-transforming, cases the Court hears. And in those cases, Obama thinks one perspective — independent from law, constitution, and precedent — should dominate. If I thought Obama honestly believed that all that stuff about “broader perspectives” and “how the world works” was simply code for wisdom and judgement, I’d be fine with it. But it’s clear (to me at least) that he doesn’t mean anything of the sort. And that’s very troubling.