Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts.

This is from political scientist Michael Evans, and was originally posted to a law and courts listserv.  I thank him for sending it along:

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I was curious about the relative number of words directed at the two sides in yesterday’s oral argument and thought the results would be of interest here.

Just a few days ago, most people including me) thought that while Thomas, Scalia, and Alito might display their naked partisanship in deciding the fate of the Affordable Care Act, both Anthony Kennedy and Chief Justice John Roberts, concerned with maintaining the Court's legitimacy and integrity, would surely uphold the law. And now after the spectacle the justices made of themselves for three days, everyone seems certain that the law is doomed, in whole or in part. And it really was a spectacle, one in which, as E.J. Dionne says, the "conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." What, you thought the Supreme Court's job wasn't to decide if they personally like a particular law, but whether it's constitutional? How quaint. Justice Scalia even asked whether if the government can regulate the insurance industry, it can make you buy broccoli, as though he had been watching Sean Hannity the night before and said, "Oo, that's clever—I'm going to use that one!"

So let me turn around the question conservatives have been asking about the mandate. If the Supreme Court will strike down this law that every sane and knowledgeable observer, both Republicans and Democrats, understands is obviously and clearly within Congress' power (see here, for example), what won't they do?...

On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the “minimum coverage” phase of the Health Care Cases.

What if you bought a ticket to The Hunger Games and ended up watching Life Cycle of the Soybean?

That may describe the feelings of bemused citizens listening to today’s recorded oral argument on the first of three days of hearings in the case against the Affordable Care Act. Instead of death panels and broccoli patrols, they got to hear a discussion for law nerds about statutory construction and the definition of “tax.”

The great legal theorist Alexander Bickel advocated that courts use "passive virtues"—that is, using invented jurisdictional reasons to not hear politically contentious cases.