I’ll have a piece up shortly at Salon about why it’s basically nuts that John Roberts gets to decide what sort of health care system America has. It quotes a good point made by Richard Posner earlier this week in the context of the life without parole for teenagers case:
I don’t object to a loose construction of the Constitution; there isn’t any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is.
Posner’s point is that, under the circumstances, “constitutional interpretation” must give justices — or, in the case of 5-4 decisions, one justice — the power to do pretty much whatever they want in regard to the sorts of issues that end up before the Supreme Court.
Whether this is a desirable state of affairs is another question entirely.
Here’s the Salon piece.