Part II: Do Polls Matter to the Supreme Court?

The Roberts Court in 2006

If you think polls and protests outside the Supreme Court building influence the court as a body, or the justices individually, think again. Polls showing disapproval of the court or individual justices may, perhaps, momentarily cause them some slight vexation, but I’m sure they quickly cast it aside and move on. Why? The public, no matter how vehemently they protest, can’t harm them. In fact, there’s a good chance they don’t even look at the polls. They may look out the window at the crowds below, but they will soon go back to work unfazed by what they witness. This particular United States Supreme Court, however, should pay attention to those recent polls indicating growing public disapproval of, and waning trust in the court based upon perceptions that it has become corrupted, biased, and political.

Why don’t the court and its members care about what the public thinks? The Supreme Court was not created to be a democratic institution, unlike the other two branches of government. Their job is not to do the will of the people but to uphold the rule of law. Consequently, public opinion, especially when divided, rarely, if ever, plays a role in their judicial decision making on the legal questions because they are never bound by it. One common criticism of the Supreme Court, and all courts for that matter, requires some explanation because it unnecessarily breeds public hostility toward the court. That criticism is actually a misperception: courts are not supposed to make law, only enforce it.[1] Well, here’s a spoiler alert. Courts all over the land have been making law every day for over 200 years.

Let’s begin with the concept that Supreme Court justices are neither selected through democratic processes, nor was the court created to do the will of the majority of the people. The founding fathers went to great lengths to place an impenetrable buffer between the court’s mission to support and defend the Constitution and the public’s desire to get what it wanted.[2] Justices are not elected. Their term in office lasts until death, voluntary retirement or removal by impeachment. The President of the United States cannot fire them. A pretty evenly divided and bitterly split United States Congress will never impeach them. And We the People cannot vote them out of office. In effect, justices are accountable only to themselves and their conscience, much like an autocratic dictator. That’s about as undemocratic as you can get.

Now, on to making law. Courts have always, are now, and will always continue to “make law.” It’s not legislative (statutory) law; it’s decisional law.[3] It is authoritative and the cornerstone of the well-established doctrine (at least until recently) of stare decisis (honoring judicial precedents). It does not, however, carry as much authoritative weight as an article of or amendment to the Constitution, or any statute passed by legislatures.

When a court rules on a legal question arising from a set of facts, decisional law is created and becomes a legal precedent.[4] In later cases of a similar nature, judges may consider that earlier case and whether it should have any authoritative effect upon their own decision-making. That’s how stare decisis traditionally works. Sometimes, a rule of law founded on stare decisis is enacted into a statute (codified) by legislatures, thus giving it even greater authoritative weight.

We learned in civics class that the United States Constitution is the “supreme law of the land,” and the Supreme Court, not Congress, is the final arbiter on what the law says. The court, therefore, acts as a check against statutory and decisional laws which, in its opinion, violate the Constitution. Since the Supreme Court has no law enforcement agency to compel compliance, it must rely on the good faith of We the People to voluntarily comply.[5] Congress can try to work around it by changing or modifying the law. For example, in the Dobbs case the Supreme Court did not hold that the Constitution forbids abortion. It held that the decisional law espoused in Roe v. Wade is no longer the supreme law of the land because, in the opinion of the current majority, Roe was wrongly decided right from the start and needed to be reversed. But, had Congress codified the ruling in Roe into a federal statute before the Dobbs case arose, there never would have been a Dobbs decision. Another example, if the Supreme Court were to rule in a lawsuit that the Second Amendment protects the right of children under 16 to own and open carry assault-style rifles, a constitutional amendment forbidding it will overrule it. (Note, the hypothetical amendment did not repeal the Second Amendment. It merely carved out an exception to it.)

In our system of checks and balances, balance is achieved because the Constitution checks the Supreme Court’s authority to “make law.” It can’t go about searching for a statute or a lower court decision it doesn’t like and write an opinion invalidating it. The court must wait for a “case or controversy” to come its way.[6]

I’ve digressed because it’s important to understand why polls on legal issues should not normally matter to any judge or justice. Outcomes of court cases are not subject to plebiscite because public opinion not only carries no legal authority, but also because some public opinions may in fact be unjust or contrary to settled law. If, for example, the majority of Americans favor a certain punishment for a crime which is clearly cruel and unusual,[7] should the Supreme Court ignore the Eighth Amendment’s prohibition of cruel or unusual punishment or should they ignore the polls? More to the point, assume the justices who voted to reverse Roe v. Wade genuinely and firmly believed in the legal validity of their decision. If those same justices looked at poll numbers favoring Roe and decided to uphold Roe for the sole purpose of appeasing a pro-choice majority, and thereby gaining popularity, what does that say about their oath to protect and defend the Constitution? What if public opinion flips two years later and the polls now favor the pro-life position – does the court reverse itself? Wouldn’t that adversely affect the public’s respect for the rule of law and the courts, to say nothing of the chaos it would cause?

Love it or hate it, the Supreme Court’s current supermajority obviously does not rule according to the prevailing majority views in this country on the hot-button issues that come before it.[8] That said, while the justices should not make law based on polls, they should at least pay attention to the times in which they are living. After all, their oath requires them to support and defend a document created for the purpose of forming a more perfect union as it moves forward into the future. The current supermajority, however, displays an attitude of not caring about whether its work will help Americans form a more perfect union or not. Its mission appears more tied to what the Federalist Society and billionaires want rather than what America needs.

I had a professor in law school who grew up in post-World War I Germany, and later escaped Nazism and fled to America. Having lived under the economic oppression imposed on Germany by the Treaty of Versailles and the tyranny of Hitler’s Third Reich, he was an ardent disciple of the proposition that laws are the products of the times wherein judges and lawmakers lived. Accordingly, students in my class would invariably begin a recitation on a case by describing the relevant current events and circumstances at the time, whether local, national or and global, because our professor believed that promoted a better understanding of the reasoning behind the law. He obviously believed that our Constitution is a living organism marching in step with unfolding history – albeit a few steps behind.

Our current supermajority, however, worships at the altar of a “dead Constitution,”[9] a document whose meaning became frozen in time nearly 250 years ago and, I must assume, will forever remain frozen like a wooly mammoth in permafrost. I, like my professor and many great jurists far above my pay grade believe in a “living Constitution” and the obligation to at least look at both the successes and mistakes of the past, the state of the present, and where we are likely headed in the future when contemplating constitutional issues. It just makes more sense to me – but I digress.

If nothing else, the Supreme Court, and particularly its chief justice, should be paying close attention to the public’s ever increasingly negative perception of the court, mainly due to the supermajority deservedly earning poor marks for integrity, trustworthiness and stewardship of the Constitution. I know I haven’t seen anything like it in my lifetime – which includes the heavily criticized Warren Court era.[10] After all, it is charged with having the final say on safeguarding and giving meaning to the document that was intended to bind our nation together, not further divide us.

It makes sense for the public to want to be proud of the court, trust in its processes and have confidence in the legal integrity of its output. Imagine if news broke that your beloved alma mater is embroiled in a scandal whereby two-thirds of the faculty were caught accepting bribes in exchange for giving out unearned and undeserved grades. Wouldn’t your support for dear ole alma mater, both spiritual and financial, diminish? Wouldn’t you demand appropriate action be taken to restore the school’s good reputation?  Nevertheless, on the record at least, Chief Justice Roberts seems to be more concerned about who leaked the Dobbs decision and the need for temporary fencing around the Supreme Court building than the ethical integrity of his colleagues and the public image of the court, all of which is significantly contributing to the court’s tanking favorability/credibility numbers in the polls. Loss of respect for the court, by extension, diminishes respect for the rules of law they produce.[11]

If I had flown on private jets to vacations on luxury yachts or to exclusive fishing trips, all provided and paid for by billionaires with business interests before my court, and if I had failed to disclose them, the Florida Supreme Court would have thrown me out of office before Mr. Crow’s yacht made its way back to port. Excuses such as those offered by Justices Thomas and Alito would not even begin to cut it.[12] Federal judges, including Supreme Court justices, have access to and can ask for well-researched, well-resourced advisory opinions on questions of judicial ethics. One would think that Ivy League-educated jurists sitting at the summit of their profession would have enough character and common sense to seek out that guidance, knowing how much the public holds them to the highest standards of judicial ethics and propriety. Moreover, their dismissive attitudes and sense of privilege and entitlement also do not help their case.

Unless Congress threatens to take action designed to end the justices’ supercilious reliance upon their perceived immunity from any outside regulation, little or nothing will change the justices’ behavior or improve the reputations of certain Supreme Court justices bent upon sweeping away settled laws that do not suit them. Increasing the size of the court, term limits and Congressional oversight of the court’s ethical behavior, with sanctions, will get their attention.

Memo to Justices Thomas and Alito; If you want to vacation like billionaires and keep it a secret, you should not have chosen an honorable, high-profile profession that only pays a $274,200 annual salary.

“A good name is more desirable than great riches;
to be esteemed is better than silver or gold.”

Proverbs 22:1

Coming up next: Originalism, Textualism . . . and the Doctrine of Major Questions?

[1] This claim was constantly hurled by conservatives at the Warren Court (1953 – 1969).

[2] Incidentally, it was not the founding fathers’ original intent that the Supreme Court have the authority to invalidate laws as being “unconstitutional.” That power was developed by the case of Marbury v. Madison, decided 14 years after the Constitution was ratified. Despite not being a power granted by the Constitution or Congress, it is firmly embedded in our jurisprudence.

[3] Early in our history much of our law was decisional law, called the Common Law, which, in large part, was borrowed from England’s Common Law. Today most of the Common Law has either been codified into statutory law or negated by statutory law.

[4] That is how Roe v. Wade came into existence, as decisional law, and it was nullified by decisional law (the Dobbs case).

[5] History has shown that We the People do not always comply. Take, for example the KKK’s acts of terrorism against African Americans trying to exercise their right to vote; or Southern schools dragging their feet after Brown v. Board of Education. In some states local governmental agencies have openly declared they will not enforce some federal laws with which they disagree. That, regrettably, is one small step toward anarchy.

[6] More about the case or controversy rule in a later piece.

[7] Let’s say, for example, cutting off the fingers of shoplifters.

[8] Guns, voting, women’s reproductive health, gerrymandering, affirmative action just to name the most obvious ones. These cases have been decided mostly by a 6 –3 vote, the rest by a 5 – 4 vote. In these cases, not a single moderate or liberal justice was in the majority.

[9] A term famously coined by the leading apostle of originalism, the late Antonin Scalia.

[10] Yes, conservatives were upset over many of the Warren Court’s decisions, but I do not recollect any claims of them committing ethical violations or of being influenced by or beholden to a single outside organization or the cabal of billionaires whose dark money helped put the “Trump Three” on the court.

[11] Their recent rulings, not some justices’ ethical shenanigans, are surely a bigger cause of drops in the polls, but the two are connected. Unpopular opinions written by justices of questionable professional ethics tend to exacerbate one another. The Dobbs case has made Justice Alito infamous. Dobbs is even more widely disliked because Alito wrote it.

[12] “I didn’t know I had to disclose that.” (Professed ignorance of something one should know is not an excuse.) “I didn’t believe I had to recuse myself from cases in which my wife or vacation sponsors have a personal interest.” (They absolutely should.) “Free flights on billionaires’ private jets come under personal hospitality and don’t need to be disclosed.” (They do.) My favorite: “I relied on the informal advice of my colleagues.” (Instead of the vast body of readily available judicial ethics literature?)