History

Power to the People

Do we really want the Supreme Court to follow public opinion?

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During the height of last summer's Senate confirmation battle over Supreme Court nominee Sonia Sotomayor, Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, took to the pages of USA Today to explain why he could not support President Barack Obama's pick. After arguing that "the American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases," Sessions declared, "I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism."

With his emphasis on "unelected" judges running amok, Sessions raised one of the modern right's most persistent complaints. For decades, on issues ranging from abortion and homosexuality to the death penalty and the rights of criminal defendants, conservatives have charged liberal judges with ignoring the will of the American people and imposing their own values in its place. Or as former federal appeals court judge Robert Bork put it in his 1996 book Slouching Towards Gomorrah, "the Supreme Court has usurped the powers of the people and their elected representatives."

So it might come as a shock for most conservatives to learn that the exact same arguments they're using against the judiciary today were first pioneered by the left-wing progressives of the late 19th and early 20th centuries. As New York University law professor Barry Friedman chronicles in his new book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, the progressives attacked the courts with a fervor matched only by today's conservatives.

Campaigning for president in 1912, for instance, Progressive Party candidate Theodore Roosevelt denounced the Supreme Court as a "super-legislature" and "a power which may give one man or three men or five men the right to nullify the wishes of the enormous majority of their ninety five million fellow-citizens." Similarly, the American Federation of Labor's Executive Council attacked the judiciary for "destroying government by law and substituting therefore a government by judges." (Compare that with former House Speaker Newt Gingrich's recent description of the Court as a "permanent constitutional convention," or former Republican Rep. Tom Delay's attack on the Court as a "judicial tyranny.")

For Roosevelt and his allies on the left, it was simply unacceptable for the courts to strike down popularly enacted legislation, such as the maximum working hours law for bakery employees nullified in Lochner v. New York (1905), or the minimum wage law for women voided by Adkins v. Children's Hospital (1923). In both cases, the Supreme Court held that the 14th Amendment right to liberty of contract trumped the government's arbitrary and unreasonable justifications.

In The Will of the People, Friedman argues that even when it comes to highly controversial cases such as these, the Supreme Court never gets too far ahead (or behind) public opinion. Thus the fierce progressive opposition to Lochner and Adkins helped create the Court's eventual support for Franklin Roosevelt's New Deal and the juggernaut of economic restrictions that followed.

Similarly, Friedman maintains that two decades of conservative backlash against the abortion rights decision Roe v. Wade (1973) led to the Court's decision in Planned Parenthood v. Casey (1992), which maintained Roe's core holding of the constitutional right to an abortion but imposed strict new limits on the practice better reflecting public opinion.

In other words, despite howls of "judicial supremacy" and "legislating from the bench" that have come from the left and the right, "the people" basically get their say in the end, either by tacitly endorsing a particular decision or by raising such a fuss that the Court changes course in the future.

It's certainly a plausible thesis, and Friedman gathers a good deal of evidence to give it weight, including statements from past and present justices revealing just how closely the Court monitors political developments. But as Friedman acknowledges in his conclusion, it also suggests that the Supreme Court may be failing to uphold its core constitutional responsibility. After all, the whole point of having a written constitution is to offer a permanent check against the shifting and fleeting desires of the majority. So if it's indeed true that the Court eventually just gives way to public opinion—as the legislative and executive branches typically do—how much independent meaning does the Constitution actually retain?

To put it another way, it's the job of the courts to protect the constitutional rights of unpopular minorities. Sometimes that means progressives don't get to interfere with capitalist acts between consenting adults, other times it means conservatives don't get to tell those consenting adults what they can or cannot do with their bodies. And it always means that the courts should be ready to stand athwart the majority yelling "stop!"

Damon W. Root is an associate editor at Reason magazine.

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  1. SCOTUS follows public opinion in large part because new justices are appointed by elected politicians, who cater to the whim of their constituents instead of picking someone who will always enforce the Constitution as written.

    1. SCOTUS?

      1. Why yes, philosopher/theologian John Duns Scotus.

        Or, less common, the Supreme Court of the United States.

        During my fellowship at the White House, we frequently referred to President Clinton as the POTUS, which, at the time, you rarely heard outside of DC.

  2. And it always means that the courts should be ready to stand athwart the majority yelling “stop!”

    Well, they do … sometimes … for a while.

    And of course, sometimes changes in popular opinion, scholarship, etc., can move the courts back to a closer adherence to the text, as with Heller.

    1. “closer adherence” is being charitable. Even in Heller. I don’t see no stinkin’ qualifiers in the 2nd. IOW, if they hadn’t intended the thing to be absolute, they would have so said.

  3. They should be standing athwart the majority, yelling “Stop!” until such time as the goddam majority passes a fucking amendment.

    SCOTUS is not empowered to amend the Constitution. Although they have, and will. And there’s not a goddam thing we can do about it.

    1. The court has been a tool of the executive since FDR overthrew the remnants of the republic in the 1930s.

      -jcr

  4. It would never be possible to have a court that was completely unaffected by popular majority, so a really long “SLOW DOWN!” (or “SPEED UP!”) is as close as we’ll get to “STOP!”

    Even in the worst of times, a panel of judges appointed by different people will almost always do better by the Constitution than 535 people with ADD and an election coming up.

  5. I think the Constitution has a great deal of worth. Not because the Supreme Court or any other part of the government follows it. They don’t.

    It is a document that despite its age has been written in clear language that for the most part is readily understandable to even govenment educated people. And if one interprets it in a plain language, unlike the way the supreme court reads it, it outlines a government amenable to a remarkably free society.

    Short of a violent revolution or external conquest, I can’t imagine the document being unthroned from its current position in the American culture.

    As long as this is true, the Constitution is a grave danger to the government. At any point in time, its citizens may read the thing and believe that what it says is true.

  6. The Supreme Court should interpret the Constitution strictly as it was written and what the intent was at the time it was written. There is no “Living Document” and should not follow what the people currently think. If public option ever gets that far away from the Constitution then it can be amended just like it has been done before. To just have the Supreme Court make a new interpretation based primarily on public opinion is an injustice to the whole process.

    1. “Interpreting” something “strictly as written” is a bit contradictory. There’s a reason they’re called judges. It’s not always clear. What is clear is that some people tend to call any policy or ruling they don’t like as unconstitutional.

  7. ‘After all, the whole point of having a written constitution is to offer a permanent check against the shifting and fleeting desires of the majority.’

    Check the shifting and fleeting desires, yes, but that’s not the only kind of desire a majority can have.

    A constitutional amendment requires more than a simple fleeting majority – it requires 2/3 of each house of Congress plus 3/4 of the states (or – though this is yet to happen – a new constitutional convention plus 3/4 of the states).

    The problem is that the very difficulty of the amendment process tempts the courts to rewrite the Constitution under the guise of ‘interpretation,’ and anyone who objects is brushed off with ‘if you don’t like the Court’s decision, then support an amendment!’ I would return the jibe right back at the Court – if you want to change the Constitution, urge Congress and the states to adope an amendment, because you sure can’t adopt one yourself.’

    To be sure, there will be differences of interpretation, even among those who sincerely try to interpret rather than make the law. But the differences will be less than if policymakers drop all pretense of proper interpretation and decide that constitutional interpretation is just a cover for amending the constitution.

  8. Packing the court, not picking the court began with George Washington. He had no idea how his justices would interpret the constitution. Precedent became the preferred basis for those who agreed with prior decisions. Activism became the rule by which political preferences could be introduced.
    Decisions drawn from the constitution alone are rare and far between.
    The First Amendment guarantees the citizen the right to say, print, assemble, petition, and believe whatever nonsense, madness or wisdom it may. This amendment specifically prevents the government from making any laws to the contrary.
    The fact that justices continue to believe that they have the same rights as the people (the authority from which they govern), when they interpret law, or when legislators make law, is exactly the danger we face as a constitutional republic.

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  10. [It would never be possible to have a court that was completely unaffected by popular majority, so a really long “SLOW DOWN!” (or “SPEED UP!”) is as close as we’ll get to “STOP!”]

    If that were true, there would be no supreme court and no constitution. That is precisely why they exist. Drafters knew from the past that entire generations of people could be expected to accept some seriously crazy bullshit.

    But I guess you’re right if you meant that “stop” can be turned into “go” by a two thirds vote amounting to an overall “slowdown”

    I guess it just makes me sad. I wish the founding fathers were just more confident of the objective truth of what they were saying. I wish it was “To hell with two thirds. This is the document, if you don’t like it-revolt and write a better one.” Instead of all this interpretation by people who never took the time to read the articles of confederation to double-check their conclusions.

  11. I don’t want the LEGISLATURE to follow public opinion.

    The average person is a moron. That means, by definition, 50% of people are even dumber than that. And we all know how un/mis-informed the average person is. More often than not, the correct public policy decision is the OPPOSITE of whatever “public opinion” is. Our country would be much better off if politicians, who have one term only and no chance of reelection, didn’t have to consider public opinion in their decisionmaking. That courts, let alone the Supreme Court, should consider public opinion in handing down their rulings is a horrifying prospect. We’d have crosses and nativity scenes everywhere, every criminal defendant would be found guilty and sentenced to the maximum (except when the defendant is a police officer), and the Bill of Rights would be completely vacated – most people even think the First Amendment “goes too far” in providing for free speech.

    The only time public opinion should be considered is as a shorthand for quickly concluding what the WRONG decision is.

  12. No matter how well written a constitution is there will always be plenty of assholes who will rewrite, misinterpret or ignore it for power. If the people are stupid enough to allow it…so be it.

  13. LOL< Power to the people? Yeah right! Only if another Revolution takes place and the poeple TAKE back what was once their!

    RET
    http://www.complete-privacy.at.tc

  14. Actually, I wouldn’t want another incarnation of the Supreme Court going all Lochner Era extreme pro-capitalism outside of the bounds of the Constitution.

    I also wouldn’t want them to arbitrarily overturn state law on the basis of content they imagine to be in the Constitution, either.

    Where the Constitution is silent, it is silent.

    I condemn the judicial activism the progressives maligned as much as I condemn the judicial activism the progressives on the court perform now.

    There is an amendment process. If we want the Constitution on paper to line up better with the dream Constitution in our heads, there’s a means to make that happen. Until it does happen, we have the contract we have.

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  18. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…

  19. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

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