We may fairly wonder whether the majority opinion in the mandate case will be a counterexample to Richard Posner’s (approving) observation that "American judges distinguish between how they might vote on a statute if they were legislators and whether the statute is unconstitutional; they might think it a bad statute yet uphold its constitutionality." Richard A. Posner, "Enlightened Despot," New Republic, Apr. 23, 2007, at 53, 55. We may fairly wonder too whether the majority opinion will display ignorance of something James Bradley Thayer wrote over a hundred years ago, namely, that the Supreme Court should
disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one--so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply--not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.
Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," 7 Harvard Law Review 129, 144 (1893).