Whatever the outcome of this week's Affordable Care Act marathon before the Supreme Court, one thing seems uminstakably clear. As a society we have all collaborted in replacing democratic decision-making by popularly elected officials with a system of judicial dictatorship. It is, I suppose, fittingly ironic that conservative populists, who ostensibly aspire to maximize individual freedom, have empowered the most anti-democratic branch of the federal government to overturn an act of Congress, the branch of government which, by constitutional design, was intended to be the most democratically based branch. Meanwhile, on the other side, liberals, who tend toward a more elitist style of governance (e.g., HHS Mandates), and have over the years done more than their fair share to legitimize judicial power over the elcted branches, may well see their signature accomplishment overturned by the monster they have fed. As usual, it is the American people who will lose. They may lose substantively in possibly losing the much needed benefit of health insurance reform. They will certainly lose procedurally in further diminishing the "political" (i.e. democratic) branches of government.
Of course, the Supreme Court could uphold the Affordable Care Act. In that case, the promise of health insurance reform will be saved. But our politics will continue to be impoverished by the systemic flaw of judicial review, which not only puts too much power in 9 "Philosopher Kings" (would that they really were at least philosopher kings, rather than merely lawyer kings!), but also, by diminishing the the ultimate responsibility and accountability of the elected branches, thus reinforces those branches' contemporary patterns of irresponsiblity and unaccountabilty.