The latest liberal meme is that if the Court rules against Obamacare it will be such an egregious case of conservative judicial activism that the Court will become illegitimate.
My question is: to whom? The 72% of the American public who already consider the mandate unconstitutional?
No, of course not. Those who’ll call the Court illegitimate are the liberal pundits and their followers who originally laughed at the entire idea of Obamacare’s unconstitutionality and cannot believe that any thinking person would disagree with them. And the fact that a Supreme Court decision overruling Obamacare might be very close—like so many controversial decisions in the current Court that is split 4-4-1 ideologically (that “1″ being Justice Kennedy, ever the pickle in the middle)—would be further evidence to liberals of this terrible Court illegitimacy.
Unless and until, of course, Obama’s re-election and appointment of a liberal justice makes decisions go reliably 5-4 for the liberal side. Or unless the current decision goes 5-4 for upholding Obamacare. Then the Court will be very very legitimate again.
[NOTE: The entire campaign about this legitimacy business has another goal: to intimidate members of the Court into voting the liberals' way. After all, who wants to be a bastard?]