Maggie Gallagher

The shocked look on CNN legal analyst Jeffrey Toobin's face as he emerged from the Supreme Court's oral arguments over Obamacare was priceless:

"This was a train wreck for the Obama administration," Toobin said Tuesday. "This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong."

By Wednesday, Toobin had upped the ante: "This still looks like a train wreck for the Obama administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed."

Toobin's dawning recognition that the Supreme Court may actually strike down a law passed by Congress and that liberals like prompted pushback from leading Democrats in Congress.

Senate Majority Leader Harry Reid said: "I'll bet I've been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts ... in my personal opinion, although I have great respect for Toobin, I disagree with him. I think that the argument went just fine and the court has not made up their mind what they're going to do."

Democrats are having a hard time believing it. They aren't used to what conservatives like me have faced repeatedly. Go through the hard slog of getting a law passed (like, say, Proposition 8 in California) only to have progressives go to court and get it struck down on the grounds it offends some radical new norm no author of our Constitution would recognize.

Since at least 1973, when Roe v. Wade struck down anti-abortion laws in all 50 states, progressive elites have looked on the Supreme Court as their wholly owned subsidiary -- a trump card only they get to play.

The Supreme Court's job, in their view, is to strike down popular laws supporting traditional moral norms -- especially sexual norms -- that progressives would have trouble winning at the ballot box. The discovery and invention of new rights, from abortion to gay marriage, was their turf, their "Get Out of Democracy Free Card."

Or so they thought.

That shocked look on Jeffrey Toobin's face was a stand-in for thousands of elite progressives' dawning realization that they might be on the receiving end of "judicial activism" -- and see how little they like it.

The American people are not constitutional lawyers, but they know what they don't like: a government mandate on ordinary people to buy something they don't want.


Maggie Gallagher

Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.