The Supreme Court Does Not Reflect Public Opinion, and That’s Okay
A photograph of the Supreme Court Building, Washington D.C.
By Lawson Wright ‘27
Recently, a rising chorus of critics, including those writing for this publication, have begun to chastise the Supreme Court for being out of step with public opinion, even going so far as to say the Court’s recent decisions are responsible for declining trust in and respect for the institution. For example, in a recent statement, Rhode Island Senator Sheldon Whitehouse stated that
“An organized scheme by right-wing special interests to capture and control the Supreme Court, aided by gobs of billionaire dark money flowing through the confirmation process and judicial lobbying, has resulted in an unaccountable Court out of step with the American people.”
Seizing upon this unpopularity, critics, including Senator Whitehouse, have proffered proposals to structurally reform the nation’s highest court with the explicit purpose of making it more representative of the opinions of the American people. Proposals include packing the court, stripping the Court of jurisdiction in certain politically-charged matters, and imposing term limits on the justices. Presupposed in these critiques and calls for change, however, is the belief that the Supreme Court should reflect public opinion. There is only one problem with that: it is not supposed to.
What happens when a government, democratically elected by a majority of its people, tries to infringe upon the rights of a minority of its people? To protect minority interests, John Locke and John Stuart Mill argue that, in a free society, there must exist a certain sphere of personal liberty into which neither any person nor government may intrude—what political theorist and philosopher Isaiah Berlin describes as “negative liberty.” The Bill of Rights functions as a protector of negative liberties, enjoining the government from invading specific areas of personal freedom. Inherently, these rights supersede any democratic enactments, no matter how popular. Consider the following example: a majority of Americans support and enact a law granting law enforcement officers the power to conduct warrantless searches and seizures against suspected terrorists. Such a law, although democratically supported, is patently unconstitutional under the Fourth Amendment. What is the Supreme Court supposed to do? Strike down the law, or defer to the will of the public? This example underscores a central feature of our constitutional framework: majorities can be wrong. They can enact legislation that intrudes upon the inalienable rights and liberties of their fellow citizens.
Our founding fathers, as James Madison outlines in Federalist No. 10, were seriously concerned with the possibility of such a tyranny of the majority—when 90, 70, or even 51 percent of the population oppresses its fellow citizens. The point is, it does not matter how popular something is—popularity cannot matter. Our democracy depends upon our judicial systems being above the political and public fray.
Critics of the Supreme Court argue that the Court’s recent unpopular rulings have prompted the public to question its institutional legitimacy. There is some understandability to that sentiment insofar as the Court’s legal rulings undermine politically popular policies, inciting public anger in its direction. But what should we do? When partisan objectives are obstructed, political actors are undoubtedly going to levy criticisms against the institution standing in the way of their goals, whether they be meritorious or not. However, artificially aligning the Supreme Court with public opinion in response to these calls is a dangerous path to embark upon, one that threatens to endanger our constitutional order.
This is not a hypothetical conclusion. The Supreme Court has allowed itself at times to be swept up in public hysteria, which resulted in the Court making morally and constitutionally incorrect decisions bearing grave consequences. For example, in the wake of the Japanese attack on Pearl Harbor and the United States’ subsequent entrance into World War II, the nation began interning Japanese Americans living on the country’s West Coast. Japanese internment was incredibly popular among the American public––only one percent opposed the internment of Japanese immigrants and just 25 percent opposed the internment of Japanese Americans. The Supreme Court, mirroring the wartime tide of public opinion, upheld the detention in Korematsu v. United States, 323 U.S. 214 (1944). This decision, perhaps one of the most flawed and odious in the history of American jurisprudence, held that the government’s decision to round up Americans of Japanese descent was not motivated by racial prejudice, even though it is undeniable that racial prejudice was at the heart of the decision. Korematsu cautions against the hazards of a Court that blindly follows public opinion. While the 1940s American public would have been outraged had the Supreme Court ruled the internment of Japanese Americans to be unconstitutional, no contemporary scholar would suggest the Court was correct in its decision, which blatantly bent to public sentiment. It can be dangerous to merely follow public opinion when interpreting the Constitution, especially when confronted with cases concerning matters of individual liberty.
Anytime the Supreme Court strikes down a law, it is inherently acting against the will of a certain population of Americans. After all, it took a representative majority of Congress and the President to enact the law in the first place. The Court’s decisions, which often are divisive, are likely to incite public fury from one sect of the American populace or another. When the Warren Court outlawed New York’s regime of state-sponsored and mandatory school prayer in public education in Engel v. Vitale, 370 U.S. 421 (1962), a majority of the American voters were incensed. Polls taken after the decision revealed that 79% of the American public supported “religious observances in public schools.” Again, when the Supreme Court released its opinion in Abington School District v. Schempp, 374 U.S. 203 (1963) the following year, an overwhelming 70% of Americans disapproved. Public dissatisfaction was so intense that there were calls for a constitutional amendment and for the impeachment of Chief Justice Earl Warren. Yet, Americans did not radically alter the nature of the Court in response to these decisions.
Another particularly salient example is the infamous case of Texas v. Johnson, 491 U.S. 397 (1989), in which the Supreme Court declared flag burning to be a protected form of free speech. Desecration of this sacred American symbol was “widely unpopular.” 75% of respondents in one poll following the decision disapproved. Yet, the decision played an important role in protecting the rights of people to speak freely and to express themselves, even when such demonstrations are unpopular. Just like how the Court protected those of other faiths or none at all in forbidding school prayer, these moments of intense unpopularity are also moments when the Court is protecting the interests of those who would be powerless should pure majorities rule. Whether about flag burning or school prayer, the percentage of the public in dissent was far greater than the percentage of the public in dissent over even today’s most contentious issues. In none of these historical instances, however, was the Supreme Court radically altered.
To suggest that Supreme Court rulings, which cut against the grain of public opinion, are somehow improper and necessitate institutional change, as many commentators have argued in the wake of the Supreme Court’s recent Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard decisions, is an assertion that reflects a fundamental misunderstanding of the role the Court is meant to serve in our system of government. Reforming the Supreme Court to be more in line with public opinion would undermine its very function as a check on democratic majority—a necessary bulwark in ensuring that the rights of everyone are protected. The fact that the Supreme Court appears out of touch with the public is not a flaw in our constitutional system, but rather a reflection of its healthy function—indeed, its very design.