I’m enjoying the current spate of articles from liberals bemoaning the power of the Supreme Court and urging its delegitimization. We’ll see how long it lasts. But some of the expressions of this fashionable sentiment have not been especially well-considered.

Take Matthew Yglesias’s denunciation in Vox of the “new conservative jurisprudence” that is supposedly hostile to democracy, eager to pare back the welfare state and regulations, and so on. Here’s part of his indictment:

Oftentimes, the result of the new conservative jurisprudence has been a straightforward attack on the outcomes of democratic governance. Even while upholding portions of the Affordable Care Act, for example, John Roberts’s Court arbitrarily decided that the incentives the ACA created to expand Medicaid were excessively powerful and states should be allowed to opt out of expansion without losing access to existing federal funding streams. There is absolutely no basis for this idea anywhere in the text of the Constitution — though it does follow from some earlier, equally ungrounded Rehnquist-era decisions — and millions of Americans have been deprived of their health insurance as a result. But not surprisingly, a judicial viewpoint that’s uninterested in democratic governance is also fundamentally uninterested in the practice of democracy.

I actually agree with Yglesias that the Court got this issue wrong. I don’t think there is any textual basis — or other sound basis — for the Court to police the congressional use of the spending power to cajole state governments into doing what the federal government wants.


But it’s a little odd to depict this decision as an example of right-wing extremism when Justices Stephen Breyer and Elena Kagan joined that part of Chief Justice John Roberts’s opinion.