Impeach Earl Roberts

Progressives are seriously worried about where the Supreme Court will go in striking down the Affordable Care Act. They’re not worried enough.

There are three constraints on how far a Court can go in pushing a new vision of what Constitutional law ought to look like. It needs a working majority of Justices, a supply of novel and credible-enough legal arguments to overturn or distinguish past precedents, and sufficient popular support to protect it against whatever backlash its rulings inspire. The current Court has the first, thanks to Justice Kennedy. It has the second, thanks to scholars like Randy Barnett. And it has the third, thanks to the Republican party and its base.

How much anger can a Supreme Court generate without being shaken from the decisions it wants to issue? A lot. The Warren Court was reviled. Until we get to the point when Justice Scalia is being regularly hung in effigy, the Supreme Court will still have all the political headroom it needs.

But think of the long term, James. I’m pretty sure the unpopularity of the Warren Court led to an entire generation of young lawyers being raised on anti-Warren Court principles. And that gradually led to the makeup and philosophy of the current Court.

That is, I think, the only real constraint on what the Court does. And it’s one that won’t come into fruition for decades, at earliest.