Even more worrisome for the federal government is the way the court reached the result it did on Medicaid. The court had to rewrite the statute to save it from a constitutional problem by eliminating the part of the law that permitted the federal government to withdraw Medicaid financing. The result, as Justice Anthony M. Kennedy warned, was effectively to leave in place a statute that Congress never enacted. (That is the same move that Chief Justice John G. Roberts Jr. employed in 2009 when he led the court to uphold the constitutionality of the Voting Rights Act.)

But there is a danger here too: that courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.

The court employed language that could be read to suggest that whenever statutes are novel, they are unconstitutional. This atextual reading of the Constitution, odd for “strict constructionists,” may later blossom into a radical constitutional theory that could upend decades, if not centuries, of precedent, going all the way back to Chief Justice John Marshall’s famous opinion in the 1819 case McCulloch v. Maryland, which spoke of a flexible, adaptable Constitution.

Time will tell whether today’s decision foreshadows things to come. But one thing is apparent: Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship, he did so within a legal context that is becoming less and less democratic. That context is obviously not of his making, but it makes imperative a serious conversation about judicial restraint.