Relying on the Supreme Court never seemed a very wise course to me, despite the exhortations with which I grew up about how various decisions, especially those of the Warren Court, defined a great forward movement toward improvement in our polity. I always kept thinking of the fact that during most of its history, the court was reactionary and showed profoundly antidemocratic behavior one might expect of an appointive institution whose members held life tenure.
As with the notorious court of the 1930s, the current bench has demonstrated its completely craven political affiliation with the most reactionary elements of the Republican Party, which reminds me of a recent comment that defined some troglodyte by saying that "the only office he could have been elected to was Secretary of the Nazi Party."
Anyone who retained illusions about the court after Bush v. Gore almost deserves the shock that recent behavior both in decisions and arguments that has revealed about the court's true leanings. We now have a court where every justice but one was a federal appeals court judge, many were academics, and none ever practiced law even to the extent former Justice Stevens did, much less Thurgood Marshall or Robert H. Jackson.
From a legal point of view, the whole argument about health care is ludicrous and one columnist noted that scant attention has been given not to mandating people buying insurance but to the difficulty many have in being afforded the opportunity given the prejudice of insurance companies against both individuals and those with pre-existing conditions. That is the kind of argument that the Solicitor General fell down on the job in failing to make. He might have pointed that out in response to the idiotic "broccoli" hypothetical.
We suffer as well from a media -- leaving aside the Fox foghorns -- that feels it is necessary to treat right-wing propaganda as meriting serious consideration. They ignore the fact that the Republicans had proposed single-payer and other progressive health-care policies some years ago but now that the hard right calls the tune, all have retreated.
I suppose I never was as enthralled by the Supreme Court as an institution. It is profoundly anti-democratic. No other nation in the world has seen fit to emulate its role, even though we now have seen Constitutional Courts with highly limited authority sprout up in other countries. As someone involved in international justice system improvement work, I have seen how few countries are very interested in, much less impressed by, the current Supreme Court's decisions. Only excessive chauvinism suggests much obeisance to it as an institution. The Warren Court appears to have been an aberration and in some ways, discouraged use of the more democratic routes to reform.