Guest opinion: The Supreme Court and public opinion
Next month’s presidential election is likely to have a dramatic impact on the United States Supreme Court. Look no further than the Republican candidate Donald Trump, who appointed three justices while he was president.
Trump’s appointments resulted in a new conservative super-majority, with six of the nine justices now appointed by Republicans. The newly constituted court’s rulings on abortions, guns, and other issues has shocked the American body politic. As Chief Justice John Roberts wrote in his concurrence, the court’s decision to eliminate the constitutional right to an abortion was “a serious jolt to the legal system.” In another systemic jolt the same week, the court struck down New York gun regulations during a national emergency of gun violence.
A “rogue” Supreme Court, many say, has warped the constitution and pitted America’s legal system against the public. Writing in The New York Times, Jamelle Bouie asserts that a “reckless, reactionary and power-hungry” Supreme Court isn’t supposed to “exist above the constitutional system.” And The Economist laments that a “less exceptional” America now has “a set of federal laws that do not reflect what Americans actually want.” Even Supreme Court Justice Elena Kagan, who dissented in both cases, warns that if “the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy.”
While there are sound criticisms of the newly constituted court, the fact that the court’s rulings don’t mirror national public opinion is neither new nor surprising. The constitution, in fact, emphatically rejects majoritarian rule.
The Bill of Rights, for example, enumerates rights that protect minorities against the majority. The First Amendment prevents the government from abridging “the freedom of speech, or of the press.” This provision broadly protects citizens’ free expression, including the most controversial and least popular forms of speech. And the Fourth Amendment protects citizens from “unreasonable searches and seizures.” No matter how unpopular a defendant is, therefore, the accused has protections in court against evidence improperly seized by law enforcement.
Basic principles of federalism likewise run counter to the notion of majoritarian control. If a minority of states have unpopular preferences — even one among 50 — those preferences control within their borders unless the constitution affirmatively says otherwise. We are, after all, a nation of individual states that are united by a limited federal constitution. As the Tenth Amendment requires: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The framers’ logic here was sound: Local communities usually (but not always) have a better handle on what their government should be doing than distant federal officials — even when local sentiments diverge from the national consensus.
The Supreme Court, moreover, in 1803 in Marbury v. Madison held that unelected federal judges, rather than democratically elected officials, define the constitution and federal statutes. As then-Chief Justice John Marshall wrote for the court: “It is emphatically the duty of the Judicial Department to say what the law is.”
Indeed, the framers specifically engineered the constitution so that the court doesn’t merely reflect popular views: Lifetime appointments insulate the justices from the vagaries and pressures of majority opinion.
So, no, the court straying from public opinion — even dramatically — is neither unprecedented nor improper.
What’s really going on, instead, is that some people get mad when the court rejects majority viewpoints they happen to favor. The court starts to get “dangerous” and “reactionary” when this happens. Yet those same people cheer when the court rejects majority opinions they disfavor.
It’s of course fine to strongly disagree with the court. There are sound legal arguments against what the court has done in numerous cases. And there are compelling prudential arguments against the court being so proactive given the fragile state of American democracy. But going against public opinion in big cases doesn’t mean the court has gone rogue. And there’s nothing illegitimate about the court siding with the minority view.
That is, indeed, how the system is designed to work.
William Cooper is the author of “How America Works … And Why It Doesn’t.”