We, through the vehicle of the U.S. Constitution, have occasionally made the final arbiter of difficult societal issues our Supreme Court, a body consisting of “unelected officials” who often seem, in the stated view of many in America today, unresponsive to the popular will of the body politic.
In truth, such decisions are deliberately left to unelected officials precisely to ensure that they do not decide difficult cases by placing their moistened fingers to the wind, having determined which way the wind was blowing. After all, they might vote by employing that moistened finger approach worried that the public might react badly if they actually chose to vote their consciences coupled with the law’s dictates, rather than reflexively complying with the majoritarian public’s sentiment.
If it were otherwise, though — that is, if the Supreme Court justices were subjected to periodic election rather than accorded lifetime appointments — how might they rule or have ruled on the burning social issues du jour, such as abortion, affirmative action and gay rights? What would be the nation’s popular vote on these issues when they were first raised, and even now? And would reliance on the public’s popular sentiment, as defined by a popular vote (the unyielding guidepost of legislators), be an ideal or even tolerable way to reach decisions, up or down?
Put differently, should we actually want the public itself, or its representatives, to make these fundamental decisions, even if ostensibly through the intermediary of Supreme Court rulings? Or, rather, do we prefer the courts to actually have the power to put aside, if necessary, the often shortsighted and misguided “will of the people”? Remember, the legislators who enacted those laws are basically voted into office after polling their constituencies on these issues. And the problem is that the constituents are too often moved singularly by what’s in it for them rather than what’s good for the nation and its overarching liberty concerns.
Indeed, legislatures are popularly elected and, unlike life-tenured federal judges and justices, must necessarily bow to the will of their constituencies lest they be defeated next time around if a majority find the legislator’s prior votes or campaign promises undesirable. Were Supreme Court decisions made that way, there might still be segregation in the deep South, a ban on gay marriage nationwide and no meaningful due process protections for criminal defendants. If the public at large, or even their elected representatives, could make final decisions on these pivotal issues, American society would in some instances be shortchanged in the extreme.
Lawyers often get a bad name for litigating cases seeking escape hatches for their clients from potentially adverse rulings. The public, though, doesn’t typically like that. And it likes it even less when judges (lawyers all), do it in profoundly, societal-changing ways — that is, finding ways around results that are more in consonance with how the law should properly be interpreted and applied. After all, who wants a presidential appointee over whom the voters have no say, making ultimate decisions that fundamentally affect their lives in negative ways?
Yes, individually, we are typically bothered only when the Supreme Court chooses paths different than our personal views of how difficult issues should be decided. Importantly, the nation is polarized over what its citizenry wants to see in the court’s composition. The Roberts Court, for example, generally rules today in a dramatically different way than how the Warren court would rule if still active. And the public is divided over whether it would want the Roberts court or Warren court actually sitting; notably, it is difficult to imagine how the Warren court would have ruled on abortion, gay rights and affirmative action in the ’60s, although extremely easy to imagine the results in those cases if it were sitting today.
The public’s view, though, shouldn’t actually really matter. The precise intention of “separation of powers” is to place a check on the unconstitutional actions of popularly elected officials who tend to follow the will of the people at large, sometimes in unambiguously unconstitutional ways. We should want that check on the desires of the public’s popular vote, to ensure that “the majority” won’t run roughshod over the rights of the minority that may, for totally good reason, be out of sync with the majority’s views. The Supreme Court, after all, ever since Marbury v. Madison, is about checking the majority precisely with that in mind.
At bottom, though, and clearly, presidents nominate Supreme Court justices based on their policy preferences. Republican presidents don’t select progressives to be justices, and Democratic presidents don’t choose conservatives. No secret there. Still, that’s a far cry from the justices, once confirmed, looking at the polling date and deciding how to vote.
Every now and again the nation, perhaps troubled by how the Supreme Court makes its decisions, needs to ponder the absolute danger in solutions that may seem ideal in the short run, but would undermine the long-term needs of the nation.
Joel Cohen, who practices law at Petrillo Klein & Boxer in New York, is a former state and federal prosecutor. He is the author of “Blindfolds Off: Judge on How They Decide” (ABA Publishing, 2014), and teaches about judging at both Fordham and Cardozo Law Schools.
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Author: Joel Cohen, opinion contributor