An acquaintance of mine commented on the following quote:

“In the past, the Supreme Court usually ruled in line with public opinion,” Urman said.

She followed that quote with this comment: “It is so terrifying to me that we think, say and print such lines as this…the implications of the Supreme Court making decisions based on public opinion, as opposed to their duty to interpret the Constitution, are so far reaching my mind blows up thinking about them. We are doomed. And we are running around pointing fingers at the ‘other side’ as we crumble, completely unaware of the actual problems.”

Now, let me provide some context:

This acquaintance is a fundamentalist evangelical Christian. That in and of itself does not make her statement problematic, but it sheds light on the lens in which she is viewing this issue. She views the Constitution in the same way she views the Bible, as if it was written as prophecy directly from God. Fundamentalists view the Bible as the literal word of God and, therefore, should not be contradicted. The problem is that the Bible within its own pages is contradictory and, frankly-speaking, it is written by humans. I haven’t confirmed this with her, but I sense she believes the Constitution is also somehow a prophecy and what was written in the 18th century is God’s law, rather than a document written by fallible human beings with intentions for this country. I am not arguing that we shouldn’t honor the Constitution; it is inherent for a thriving democracy that we honor the Constitution as well as the founders’ intentions. Those intentions have been documented in many historical papers, including but not limited to the Constitution itself. 

The first words of the Constitution state: “We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” The key words here are “We the People.” Three branches of government were established as a system of checks and balances so that no one person or few people held all the power: the Executive branch, Legislative branch, and Judicial branch. The Judicial branch was implemented to uphold laws created by the Legislative branch and to ensure that any laws enacted honored the Constitution as it was meant by the Founders. However, many citizens who have a tendency to be led by a higher authority (i.e. God, Jesus, capital, etc), tend to view the Constitution as unmalleable. They view it as set in stone rather than amendable, which is absolutely what the founders intended.

In order to understand my point of view, one has to take the long view of what democracy actually means. It is defined as a system of government by the whole population or all the eligible members of a state, typically through elected representatives. “We the People” inherently means that public opinion matters. We are currently in a democratic system that is moving closer and closer to minority rule in this country. What that means is that the people in power do not reflect the views of the majority of the population. We see this with Supreme Court decisions like Dobbs where the right to an abortion was overturned federally even though a strong majority of people want it. We also see this in the Legislative branch with issues such as universal healthcare, gun control, and LGBTQ issues. Even though the vast majority of the U.S. population supports universal healthcare, common sense gun laws such as universal background checks, and the right for LGBTQ to exist and to marry, the Republican Party has sought to prevent laws supporting these policies from passing through the filibuster. Minority rule is inching closer as well through gerrymandering, a captured Supreme Court, the antiquated electoral college, and unregulated lobbying and campaign finance rules. In short, when a minority party can game the system and when those in power don’t reflect the will of the People-at-large, we no longer have a functioning democracy. This concept applies to how the Supreme Court rules as well.

The Supreme Court’s function is to interpret the Constitution, but its function in my view also consists of the following: 1) honoring precedent to a high degree, 2) moving slowly with regard to upholding or dismantling existing laws, 3) taking a wide lens on Constitutional interpretation, and 4) upholding the ethics of the bench to maintain legitimacy. Below I will explain each of these further in the context of popular opinion.

In a rapidly evolving technological environment, we have to view Constitutional issues and their intentions from a point of view that makes sense for current times. Our founders understood this and purposefully wrote our laws with the ability to amend and change them to fit the current landscape in which we live. With that said, we must consider the context and applicability of old and existing laws. Supreme Court Justice Ruth Bader Ginsberg, a judicial champion of women’s rights, as a lawyer used the judicial system to build cases around equality and justice for women. When she became a judge on the Supreme Court, despite making it her lifelong quest to secure rights of women, she commented on the opposition of the Roe v. Wade decision stating, “opposition mounted, and instead of fighting in the trenches, state by state, to retain restrictive abortion laws, there was one clear target to aim at: the unelected justices of the Supreme Court. This is a decision that should be made, so the argument went, by the people’s elected representatives and not nine, at the time, old men.” Ginsberg’s comment was a reminder that we are a Republic of the people, by the people, and for the people…that what this country decides to be should come from elected officials chosen by its constituency. It isn’t the Judicial branch’s job to form policy; it is their job to ensure that laws promote the foundations of the Constitution, one of which is equality before the law. That said, it is extremely important that the Court not only align with those constitutional foundations, but also with what the majority of the People represent. Because our Constitution was purposely written somewhat vaguely, allowing room for evolving generations, its mandate should be taken with that same wide lens of progress and leniency. The Court’s function is not to impose laws and restrictions; its purpose is to uphold the freedoms and rights that are enshrined in our national documents. In essence, the Court’s purpose is meant as a guardrail, not a prison.

Part of the mindset in maintaining Supreme Court legitimacy is in honoring the precedents set by previous Courts. Though there are some examples where an overturning of a court decision per the Constitution was absolutely necessary (i.e. Plessy v. Ferguson of 1896), overall the building blocks of national ideology and cultural change is best addressed through long slow progress. Honoring Stare Decisis, a legal principle determining points in litigation according to precedent, is a long held tradition in maintaining that legitimacy. Furthermore, the long slow process of forming legitimate arguments through multiple cases as opposed to one case that moves the needle too far one direction or the other also causes instability in the legitimacy of what the court is doing as it pertains to public opinion. With the nuance and complexity of issues and ideas within large populations such as the United States of America, the long arduous process of argumentation and debate truly is necessary in creating a country based in strong foundational ideas through education, advocacy, and staunch commitment to the judicial process, which traditionally has tried to inherently push divisive issues back to the legislative branch, where the voices of citizens can more legitimately be heard and acted upon. The Judicial branch purposely takes a wider lens on issues related to Constitutionality because its job is not to write the laws but only to interpret their fairness and legality. Justices’ jobs are to look at every possible scenario a law could invoke and determine if said law imposes restrictions that violate the rights of citizens versus their ability to harm a constituency. Their mandate is to determine the wider implications of a law outside of the individual cases it affects. That is why briefs and decisions, whether they be majority or dissenting opinions, are so important and why the emergency shadow docket being used increasingly by this current Court is so problematic. Justices are required to show their work and document their logic and reasoning behind their decisions. Those decisions are crucial to the building blocks of the future and evolution of not only the Judicial branch but the country as a whole, what we want to be and how we want to live. The shadow docket, which does not require said work, traditionally used for such emergency decisions as overturning last minute death sentences, are increasingly being used by the current Court to push through decisions that do not show their work. That raises a Court ethics and legitimacy problem. There are many ethics problems swarming the Court right now such as Justices being compromised by lobbyists (specifically on the Right with organizations such as the Supreme Court Historical Society), leaks of court decisions before they come down, and ties to cases they should be recused of (i.e. Justice Thomas with regard to his wife’s participation in the January 6th Insurrection). Other issues with this current Court include how it was formed…from McConnell’s withholding of a vote on Obama’s pick in Merrick Garland back in 2016 to the subsequent jamming through of Justice Amy Coney Barrett just a couple of weeks from the 2020 election (overturning McConnell’s own reasoning of not implementing a judge too close to an election). Another issue of illegitimacy surrounds Justice Kavanaugh who had multiple complaints prior to his confirmation that went uninvestigated during the Trump-led administration. Without clearly stated ethics and principles, as well as a process of inquiry into ethical issues that arise, the Supreme Court will continue to be shrouded in distrust, doubt, and illegitimacy that erodes the foundation of the third pillar of our democratic process.

Popular opinion plays a huge role in the legitimacy of the Supreme Court. Without that legitimacy, the Court is at risk of becoming irrelevant. When the public does not trust the institution, it weakens its ability to uphold its mandate as the guardrail to law and order and, ultimately, to a truly free society. The Supreme Court is not God and the Constitution is not a Bible of sorts. When we view those important democratic functions as some sort of immovable strict authority, in much the same way religion can be used as a weapon, so can the Court and the Constitution. Democracies are led by the People, first and foremost. The Constitution and the Supreme Court exist to remind us of that fact. How we interpret our own laws and foundational documents is up to us. We utilize experts, historians, lawyers, etc to help guide us but, ultimately, we define what that means. The Courts and the People together create a symbiotic relationship, dependent on one another to maintain democratic functionality. They are purposely intertwined. We use religion as a structural framework to enhance our relationship to God (should we believe in one) in the same way we use the Constitution as a structural framework to enhance our relationship to power within this country…held in check by our relationship to each other and our collective popular ideas about how it should look. This is much like religions, constantly evolving over time as our views, ways of life, and technology change, influencing how we want our world to look in the future. Democracy means we are our own authority, and we work together to form a society based in freedom, equality, and collective participation and cooperation. The Supreme Court is simply one manifestation of that very principle. If the Supreme Court does not rule in line with public opinion, it is a sign our democracy is failing us. Without People at the center, we lose sight of not only what matters but what this country was founded on in the first place.