If Supreme Court Decisions reflected ‘the will of the people’ 

Through the vehicle of the U.S. Constitution, we have sometimes made the ultimate arbiter of difficult social issues the Supreme Court, a body often made up of “unelected officials” of the court. views expressed Many people in America today are unresponsive to the will of the political community.

In fact, such decisions are deliberately made by unelected officials precisely to determine which way the wind is blowing and to avoid deciding difficult cases by putting a damp finger to the wind. It is entrusted to After all, they feared that the public would react badly if they actually chose to vote based on their conscience, coupled with the dictates of the law, rather than reflexively following the sentiments of the majority public. Worried, you may take a wet-fingered approach and vote.

But if that were not the case, if Supreme Court justices were subject to periodic elections rather than lifetime appointments, how would they rule on this serious social issue, or have they ruled in the past? Did you put it down? regularly, Abortion, affirmative action, gay rights, etc.? When these issues were first raised, and even today, what would happen to the public vote on these issues? And to rely on the will of the people as defined by the popular vote (the unwavering guidepost of legislators)? , is it an ideal way to make a decision, whether up or down, or even an acceptable way?

Put another way, should we actually want the people themselves, or their representatives, to make these fundamental decisions, even if they ostensibly mediate Supreme Court decisions? Or would you rather that the courts actually have the power to set aside the often short-sighted and misguided “will of the people” when necessary? Remember, the legislators who enact these laws are essentially voted into office after voting with their districts on these issues. And the problem is that voters are too often motivated by what’s good for them, rather than concern for the country and its comprehensive freedoms.

In fact, Congress is elected by the public, and unlike federal judges and justices, who are tenured for life, it is necessary to avoid losing the next time if a majority decides that a member’s advance vote or campaign promise is undesirable. The will of the constituency must be followed. If the Supreme Court’s decision went that way, racial discrimination would still exist in the Deep South, same-sex marriage would be banned nationwide, and criminal defendants would not have meaningful due process protections. There is. If the entire nation, or even its elected representatives, were allowed to make final decisions on these vitally important issues, American society would be in dire straits in some cases.

Lawyers often get a bad rap because they litigate in search of a refuge to escape their clients from potentially adverse judgments. But the public usually doesn’t like it. And that judges (all lawyers) do it in ways that make a big difference to society, that is, find ways to avoid outcomes that are more consistent with the way the law should be properly interpreted and applied. I don’t like it. After all, who would want a presidential appointee making final decisions that have a fundamentally negative impact on the lives of the people, without voters having a say?

Yes, we as individuals are only bothered if the Supreme Court chooses a path different from our personal views on how difficult issues should be decided. Importantly, the country is polarized in terms of what people want from the composition of the courts. For example, the Roberts Court generally rules cases today in a dramatically different manner than it would have ruled had the Warren Court still been in operation. And the public is divided over whether they want the Roberts court or the Warren court to actually hear the case. In particular, it’s hard to imagine what the Warren Court would have ruled on abortion, gay rights, and affirmative action in the ’60s, but if the court were heard today, it would It is very easy to imagine the result.

But the public’s opinion really shouldn’t matter that much. The precise intent of the “separation of powers” is to restrain the unconstitutional acts of popularly elected officials, who tend to follow the will of the people as a whole, in some cases in clearly unconstitutional ways. We need to check people’s desire for a popular vote to ensure that the “majority” does not play roughshod over the rights of a minority that may, for good reason, disagree with the majority’s opinion. There is. After all, the Supreme Court has since Marbury vs Madisonis to check exactly the majority with that in mind.

But fundamentally, and obviously, presidents appoint Supreme Court justices based on their policy preferences. Republican presidents don’t elect progressives to be judges, and Democratic presidents don’t elect conservatives. There are no secrets. Still, that’s very different from judges, once confirmed, looking at Election Day to decide how to vote.

The public will probably be troubled by how the Supreme Court will rule, and ponder the absolute dangers in a solution that may seem ideal in the short term but undermines the public’s needs in the long term. There is a need.

Joel Cohen, an attorney 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 on judging at both Fordham Law School and Cardozo Law School.

Copyright 2023 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.