Ruth Marcus: The gyroscope is still working

BY RUTH MARCUS Published: June 30, 2012
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I've always thought of the Supreme Court as having a kind of internal, institutional gyroscope that keeps it from veering too far out of kilter.

This notional instrumentation is obviously imperfect; there are times when the court overreaches. And in recent years — call it the post-Bush v. Gore era — there have been numerous instances that give cause to wonder if the gyroscope is functioning at all.

Thursday's ruling upholding the constitutionality of the Affordable Care Act offers welcome, relieving evidence that it is, thanks to Chief Justice John Roberts. Lord knows, there have been times when Roberts has failed to practice the umpire-like restraint he so fervently preached at his Senate confirmation hearings.

The court under Roberts reached out in the Citizens United case, for example, to decide a question that had not been raised by any of the parties before it, and in doing so overturned one of its own precedents and a congressional enactment.

I like the result in the health care case, if not all of the reasoning. But I hope to be saying something more intellectually honest here than that the chief justice ruled in a way I agree with, so now I've decided he's a good guy after all.

My point is also different from the maxim of the Supreme Court following the election returns or being swayed, however subconsciously, by public opinion. After all, if the court's decision-making on the health care law was influenced by public polling, the mandate would have been out the window: The provision did not have majority support even among Democrats.

I mean something more fundamental about the court and the justices' conception of its role in the constitutional architecture. The court appropriately operates as a check on the power of Congress and the president. It acts less appropriately as a check-mate, frustrating the ability of the other branches to address national problems.



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