Bench Memos

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Ruled by the Constitution--or “Fairness”?


The Rasmussen polling operation conducted a survey of 1,000 adults in late January, asking this question about the Supreme Court, among others: “Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?”  64% said the Court should decide based on the Constitution and precedents; 27% said by fairness and justice (9% weren’t sure how to respond). 

I suppose a poll in which nearly two-thirds of Americans say the sensible thing is a good-news story.  But more than a quarter of respondents have so little understanding of what the Court’s job is that they think “a sense of fairness and justice” should guide the judges–i.e., a sentiment or a feeling–and it’s not as though the respondents could have mistaken what that “sense” was supposed to be, when it was deliberately contrasted with “what’s written in the Constitution” in the question itself.  Yikes.

Yes, I get it–it could be much worse.  And it is.  The answers to the remaining questions in this brief survey suggest a lot of confusion among the respondents, as you can see for yourself.  That makes it hard to know exactly what to make of the answers to the last question, which asked which of the two alternatives above the respondents thought President Obama would choose.  Only 35% thought he wants the Supreme Court following what’s written in the Constitution, 38% thought he wants the Court guided by “a sense of fairness and justice,” and 27% weren’t sure what he wants.  While some people may be taking a wait-and-see attitude, a lot of Americans appear to distrust or suspect the president where the Court and the Constitution are concerned–and rightly so, I’d say.

If you waterboarded the faculty of American law schools (oh, the thought of it), I think a sizeable majority of the professors would be in the camp devoted to “a sense of fairness and justice”–that is, they’d be out of the mainstream of popular opinion, not to mention the mainstream of historic constitutionalism.  Some of Obama’s academic partisans are positively salivating at the thought of getting some “heroic” liberals on the Court, like the late William Brennan and Thurgood Marshall.  (Yes, boys and girls, there are actual law professors out there who think there are no liberals on the Court today, only “moderates” and “right-wingers.”)  So reported Adam Liptak of the New York Times on Sunday.  The professor taken as representative of the whole gang of them, jonesing for a “big liberal voice” to be appointed to the Court at Obama’s earliest opportunity, is Geoffrey Stone of the University of Chicago law school.  And as far as you can tell from Liptak’s story, Stone just wants a liberal politician in robes.  At no point in Liptak’s story do we get the slightest indication that Stone believes the liberal agenda is somehow the command of the Constitution.  I’m sure he believes that “justice” commands the particulars of the liberal agenda.  But the Constitution?  That merely provides an opportunity, in the form of the judicial power.  And power is the bottom line.


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