The Court Affirms Our Social Contract
In civics class we learn that federal courts decide whether laws passed by Congress and the state legislatures are constitutional. Therefore the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches. That is the best way to understand what happened in the Health Care Case. It also helps explain why Chief Justice John Roberts' opinion is written the way it is....

...Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract....

...My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward....