And that’s just the problem. We expect too much of the Court, and not enough of ourselves. Maybe the Court does, too. After all, the entire judicial branch is practically a constitutional afterthought, dispensed with in three brief sections. Here’s section one:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
That’s pretty much it; the other two sections have to do with jurisdiction and treason. But since the Earl Warren era, the Supreme Court has come to be regarded by both sides not as the court of last resort, but (thanks to Marbury v. Madison) the legislature of last resort. The Left learned early that it could achieve via the third branch of government (the “least dangerous,” in Hamilton’s words) what it could not win at the ballot box or via the legislative process. The Right came to it more slowly, but in the end adopted the Left’s argument — and that is why many conservatives are so bitterly disappointed today. They wanted the Court to save them from themselves.
Not gonna happen. Roberts again:
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.
So it’s time to man up and realize we’re in the fight of our lives — and one with no pre-ordained guarantee of victory. We can prattle on about America’s being the “the last, best hope” all we want, but that doesn’t change the fact that a sizable number of our fellow citizens and an entire political party see that as a bad thing and want to change it.
The chief justice just threw up his hands and walked away from the central issue of the presidential campaign — no, not ObamaCare itself, but the relationship of the citizen to the state. There’ll be no deus ex machina this time. It’s up to us now.