In his op-ed column in today's New York Times, David Brooks considers the challenges facing the health-reform law, beginning with the situation in the courts:
So far, one judge has struck down the individual mandate, the plan’s centerpiece. Future decisions are likely to break down on partisan lines. Given the makeup of the Supreme Court, this should concern the law’s defenders.
And then he moves along, like that, to the next topic. This is how far the Supreme Court's legitimacy has eroded: David Brooks, who believes in the integrity of institutions and the soundness of the status quo, takes it for granted that the federal judiciary plans to vote on party lines. The "constitutionality" of a law passed by a Democratic majority in Congress is defined not by whether the law fits with the existing body of law and precedent, but by whether the Republicans have the votes on the Supreme Court to overturn it.
This is not a particularly novel critique of the right-wing-activist turn of the judiciary, but it's hard to imagine a mainstream conservative columnist accepting it so blithely in the era before Bush v. Gore. Even if certain justices always voted a certain way, the polite thing to do was to attribute it to principle. If they started overturning earlier majorities' precedents, it was because they were trying to affirm some older, deeper principle. Officially, the Court was independent and impartial.
The Roberts Court itself, however, makes very few bones about its role as a Republican-majority superlegislature. Thus we get Chief Justice John Roberts—the Court's Republican majority leader, as it were—welcoming the new House Republican majority by presiding over a special swearing-in ceremony for John Boehner's staff. Politico described this as "another statement of the new House Republican majority's commitment to the Constitution." Commitment might not be exactly the right word. It was some kind of statement about the Constitution, at any rate.