In a 2012 survey by FindLaw.com, only 34 percent of respondents were able to name even one of the nation’s Supreme Court Justices. But as Americans are known to demonstrate, a lack of information doesn’t necessarily mean a lack of an opinion. With the public eye trained on the Court after a recent slew of controversial cases, Americans’ opinions are as strong as ever. A 2015 Gallup Poll found that 50 percent of respondents disapproved of the Supreme Court, the highest such percentage in the 21st century. Regarding ideological makeup, 37 percent of respondents thought the Court was too liberal, 20 percent thought it was too conservative, 40 percent thought it was about right, and only 3 percent — the lowest in the last 25 years — registered “no opinion.”
While the American people clearly care about what the Supreme Court does, it’s questionable whether those people fully understand what the Court is supposed to do. To the average person, the Supreme Court does a good job when it upholds laws the person likes, but a bad job when it strikes down those favored laws. Although the Court’s decisions are what tangibly affects people’s lives, neglecting to explore the rationale behind those decisions reflects a fundamental misunderstanding of the Supreme Court’s intended role in American society and government.
If the only thing that mattered about the Court were the result of its decisions, there would be little to separate its function from that of a legislative body. Yet Article III of the US Constitution calls for a Supreme Court — not a Supreme Congress. The legislative branch is supposed to act democratically, weighing the merits of proposed laws and acting as representatives of the people. The judicial branch is supposed to clarify the law, leaving lasting precedents that can override democratic majorities. Judging the Court based solely on its decisions undermines this necessary distinction. The Supreme Court’s role is to interpret and apply the Constitution to the laws of the United States, not to determine whether policies are “good” or affirm a particular political ideology.
Justice Hugo Black, who served on the bench from 1937-1971, had a career that illustrates the different roles the Court and Congress are supposed to play. As a senator in the 20’s and 30’s, Black was an ardent New Deal supporter. But during his time on the Court, Black was a strict textualist, advocating a limited role for the judiciary and despising judicial activism — two stances that are more common among ‘conservative’ justices. In Griswold v. Connecticut, a case that affirmed a couple’s right to be counseled regarding the use of contraceptives, Justice Black dissented, denying that a “right to privacy” was explicit in the Constitution. Today’s liberals would have assailed against that decision, but Justice Black based his vote on constitutional provisions, not public or personal opinion.
Although rooting for the Court to always rule in line with one’s own values is tempting, that position can’t be coherently defended. A Court that routinely votes based on the justices’ current political beliefs could easily vote in the opposite direction of those beliefs when new members take the bench. The Constitution acts as a constraining force, binding judges’ opinions to a common standard by which all their decisions must be assessed. Without this textual check, America’s system of laws would be entirely unconstrained, subject to the personal whims of nine unelected lawyers.
Resolving this conflict — between wanting the Court to affirm one’s own values and wanting America’s policymaking process to be representative and democratic — requires a good bit of analytical nuance. It takes a recognition that one can like a court decision without agreeing with its reasoning, or more importantly, that one can dislike a court decision while still acknowledging the soundness of its reasoning. Unfortunately, such disentanglement is rarely present in public discussions about the Court, especially with cases that adjudicate contentious issues.
Take two recent cases that have generated a lot of public attention: Obergefell v. Hodges and Citizens United v. Federal Election Commission. In Obergefell, the Supreme Court ruled that state bans on gay marriage were unconstitutional, an ostensible victory for liberals who praised the ruling as affirming equality. Conservative groups derided it for a variety of reasons, including judicial overreach and a rejection of biblical principles. Notoriously absent among these passionate commenters was any meaningful discussion about the judicial rationale that led to the decision. Opponents of gay marriage would have done well to consider that the due process and equal protection clauses of the 14th amendment might hold more weight in constitutional interpretation than do their religious beliefs.
Still, supporters of gay marriage could also find reason to frown upon the ruling; the decision itself soared with powerfully moral ideas, but at times it may have been more poetic than legally rigorous. Even gay marriage proponents should be wary of letting this textual looseness slide without a more critical analysis. While the Court’s decision may very well have been constitutionally justified, the general point remains intact: allowing judges to do things we like without thoroughly articulating their constitutional reasoning sets a dangerous precedent for future opinions by insulating the Court from its necessary fidelity to the Constitution. Also, supporters can recognize that their victory may represent an example of judicial activism, something that irks textualists on both sides of the aisle. Chief Justice Roberts addresses exactly this point in his dissent, implying that while allowing gay marriage might be good policy, the role of the Court is not to restrict states’ ability to make that determination on their own.
In another contentious case, the Court ruled in Citizens United to allow corporations and unions to make unlimited political contributions from their own direct treasuries for independent political advertising. Liberals lambasted this decision, creating rallying cries like “corporations aren’t people” and “money isn’t speech” to signal their discontent with the flood of big money now allowed into elections. But these slogans indicate more of an ideological opposition to campaign spending than a constitutional one. While money is not technically speech and corporations are not technically people, neither of these truisms necessarily undermines the Court’s ruling. The decision’s basis was the idea that the freedom of speech also implies the freedom of individuals to hear all opinions. Thus, limits on campaign contributions restrict citizens’ ability to hear a full range of political viewpoints, thereby impairing their constitutionally protected first amendment rights and ability to be informed democratic participants. Given this, a person could reasonably hate the torrent of campaign cash that Citizens United released while conceding that the case may have been decided correctly.
Both of these cases underscore how the job of an independent judiciary is misunderstood if it is viewed only in terms of policy outcomes. Although many policies sound good in isolation, it is a gigantic leap to say that those policies should trump the legislative limits set by the United States Constitution. To love or hate the Court based on whether it agrees with certain values is to reject separation of powers and overstate the importance that one person’s political opinions, or even one political party’s platform, should have. The judiciary is independent for a reason; when public oversimplification of Supreme Court decisions happens, the country as a whole loses the opportunity to engage more deeply in constitutional interpretation.
Widespread, democratic deliberation on constitutional issues is an essential component of American democracy, even if the Court has the final word. In contemporary political debates, differences in opinion can seem irreconcilable. Opposing sides have such disparate ideologies that any attempt to find common ground is doomed to fail, leading each side to categorically dismiss the other. Done right, arguments about Supreme Court decisions can avoid this dilemma. With the Constitution as the common ground to which all parties must appeal, the potential for vitriol and dismissal diminishes. Americans that see the Court as interpreting and applying the Constitution recognize that decisions they don’t like aren’t meant as attacks on their values, but rather are sincere attempts to uphold the rule of law and separation of powers that are so fundamental to American democracy. At that point, it is up to those disgruntled individuals to go out and persuade their fellow citizens that the Constitution should be amended. If they’re successful, they will have managed to vindicate their beliefs and effectively self-govern, all within the framework of our constitutional system.
Reshaping the nation’s discourse and understanding of the Supreme Court is no small task. It can’t be accomplished by policy alone, and it won’t happen overnight. What it will take is a commitment to place fidelity to the Constitution over individual policy preference. The media can help by covering judicial reasoning rather than focusing on the political outcome. The government can do better by supporting enhanced civics education in schools to teach children the role of the branches of government. Politicians can refrain from supporting or rejecting jurists based on their past decisions and instead more closely consider their legal acumen. And the people can try to temper their own strong opinions on the cases the Court takes up, keeping in mind that the Court defends America best when it makes its choices based on America’s founding documents, not on the outrage of a base that’s only concerned with advancing its ideological agenda.
