What is the basis for this assertion? From the perspective of people who understand how the Supreme Court works — those of us who take the Constitution seriously, those who have practiced law, those who have worked or clerked for the court, those who have written fine books (such as Jan Crawford Greenberg) and, I can say with perfect certainty, the justices themselves — this is simply wrong. It doesn’t represent how the justices think and how the institution operates.
It’s quite fashionable among far-left legal critics — who assert the courts are just putting on a show to disguise the whims of the judges — to toss about this stuff. But in the real world, the court does not act as an arm of Congress, the political parties or the blogosphere. I may not agree, for example, with the method of Justice Breyer’s constitutional approach, but I have no doubt he is trying to get it “right” and is quite indifferent to the election calendar. …
And the difference, for those of us who understand governance in a constitutional democracy to be more than the sheer exercise of power, is a critical one. The court, when it hears the case — and it will unless the health-care law is repealed before they have the opportunity — won’t decide the case based on CBO numbers, polls or the favorability ratings of the presidential candidates. They are, for goodness sakes, not bloggers or political apparatchiks.
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