If Democrats, in a fit of pique, delegitimize the court over an ObamaCare defeat, conflicts between future presidents and the court are likely to turn out differently. At the very least, future Supreme Courts will be less willing to confront a president head-on, while future presidents will be more willing to ignore or evade high court decisions they don’t like.
Yet Supreme Court decisions are the source of much of the liberal legal infrastructure for today’s society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.
And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?
If the Supreme Court’s prestige is no greater than Congress’, its role as a check on government will suffer. Is that the legacy that Democrats want ObamaCare to leave?