What the impact of the US presidential election is likely to be on the Supreme Court - William Cooper

A ‘rogue’ Supreme Court, many say, has warped the constitution and pitted America's legal system against the public. Writing in The New York Times, Jamelle Bouie asserts that a “reckless, reactionary and power-hungry” Supreme Court isn't supposed to “exist above the constitutional system”. And The Economist laments that a “less exceptional” America now has “a set of federal laws that do not reflect what Americans actually want”. Even Supreme Court Justice Elena Kagan, who dissented in both cases, warns that if “the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy”.

While there are sound criticisms of the newly constituted court, the fact that the court’s rulings don’t mirror national public opinion is neither new nor surprising. The constitution, in fact, emphatically rejects majoritarian rule.

The Bill of Rights, for example, enumerates rights that protect minorities against the majority. The First Amendment prevents the government from abridging “the freedom of speech, or of the press”. This provision broadly protects citizens' free expression, including the most controversial and least popular forms of speech. And the Fourth Amendment protects citizens from “unreasonable searches and seizures”. No matter how unpopular a defendant is, therefore, the accused has protections in court against evidence improperly seized by law enforcement.

Basic principles of federalism likewise run counter to the notion of majoritarian control. If a minority of states have unpopular preferences - even one among fifty - those preferences control within their borders unless the constitution affirmatively says otherwise. We are, after all, a nation of individual states that are united by a limited federal constitution. As the Tenth Amendment requires: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The framers’ logic here was sound: Local communities usually (but not always) have a better handle on what their government should be doing than distant federal officials - even when local sentiments diverge from the national consensus.

The Supreme Court, moreover, in 1803 in Marbury v. Madison held that unelected federal judges, rather than democratically elected officials, define the constitution and federal statutes. As then-Chief Justice John Marshall wrote for the court: “It is emphatically the duty of the Judicial Department to say what the law is.”

Indeed, the framers specifically engineered the constitution so that the court doesn't merely reflect popular views: Lifetime appointments insulate the justices from the vagaries and pressures of majority opinion.

So, no, the court straying from public opinion - even dramatically - is neither unprecedented nor improper.

What’s really going on, instead, is that some people get mad when the court rejects majority viewpoints they happen to favour. The court starts to get “dangerous” and “reactionary” when this happens.

William Cooper is the author of How America Works … And Why It Doesn’t.