The Supreme Court’s legitimacy, it seems, should have been in decline a long time. It really ebbed low in the 1960s, when the Court promoted all sorts of social change in criminal procedure, expanded the establishment clause, protected obscenity, and much else. Most of its moves had no precedent. Some, such as its fiat of a constitutional right to contraception or abortion, had absolutely no basis whatsoever in the constitutional text. Yet the Court survived, even as it scaled back its commitment to social revolution in the 1970s and 80s.
There is some talk that Justice Roberts may have switched his vote in fear of and deference to Obama’s fusillade against the Court earlier this year, where he suggested overturning his new and unprecedented government intrusion into private life would itself be unprecedented. Does this even pass the straight face test? The Court has tread into far more sensitive areas with far more majority consensus and its legitimacy has survived. Indeed, it continues to enjoy legitimacy in spite of itself.
So why would Roberts or anyone think the Court’s legitimacy would be squandered when a law that at best has a lukewarm majority in support and no existing constituency would be overturned? If this is true–and perhaps it is–then it is a sign of someone who is not only a coward, but someone whose reading of the political tea leaves is completely off base. A battle over Obamacare between the administration and the Court would leave the administration far worse for wear, as even the Court’s critics are reluctant to support a truculent executive war against courts in general. Such moves would be too reminiscent of the lawless regimes America spends so much time criticizing, and the nation’s leftist intelligentsia, as indifferent to constitutional niceties as they are, are also frequently lawyers, and lawyers’ instincts tend to side with judges and courts when executives, legislatures, and majorities dare to challenge their oracular pronouncements. If nothing else, at least half the country would have been on his side, which is more than the Court can say when it struck down the death penalty or decided to impede the war against terror.
This strikes me as the kind of prognosticating that only someone who has lived in Washington DC a long time could make. Let’s hope we can overturn this abomination come the fall.