It gets tiring having to point this out, but here goes nothing.
At CNN today, Stephen Collinson writes:
A tense national mood is likely to be exacerbated if, in what would be twin triumphs for conservatives, the Supreme Court rules against majority public opinion and loosens gun restrictions and overturns a woman’s right to an abortion in the coming days. Already, a man has been charged with trying to kill conservative Justice Brett Kavanaugh, reflecting the charged atmosphere surrounding the court and the politicized issues it’s set to rule on.
This is a disgraceful choice of framing that — whether intentionally or not — serves as a partial justification of the very “charged atmosphere” and assassination attempt that Collinson is ostensibly attempting to lament. The Supreme Court is a court, and its job is to uphold the law — whether statutory or constitutional — as it actually exists. The wishes of “majority public opinion” — or of would-be political assassins — are irrelevant to this endeavor. If a sufficient majority of Americans no longer like the law, they can use their democratic power to change its text. But, until they do so, that text will remain what it is, and the Court will be obliged to interpret it without fear, favor, contrivance, or reference to anything beyond its written terms.
Collinson points in particular to two questions that are currently before the Court: abortion and guns. If one were to take his insinuation at face value, one could be forgiven for believing that the plaintiffs had asked the Court, “Hey, so abortion and guns — good or bad?” But, of course, they have done no such thing. Rather, they have asked the Court to decide whether the text of the Constitution precludes or limits certain democratic choices related to the regulation of abortion and guns. The originalist argument on abortion — the argument that Collinson clearly suspects will prevail — is that the Constitution does not mention (or imply) anything about abortion, which means that that question must be left entirely to the people. The originalist argument on guns — the argument that Collinson clearly suspects will prevail — is that the Constitution explicitly protects “the right of the people to keep and bear arms,” which means that, absent a subsequent amendment, there exist certain limitations on what the people may do to regulate it. At no point in examining either question would it be appropriate for the Court to ask what the public would prefer if given a vote.
Why not? Because — once again, for those in the back — the Supreme Court is a court, not a legislature, and because its job is not to decide what the law should be, but what it is. That the Court sometimes deals with “politicized issues” does not alter this. Indeed, there would be no point in our having a written constitution if its terms could be overridden by transient public opinion every time the issue at hand was deemed controversial. If all it took for a given political action to be considered legitimate were a careful reading of opinion polls, then there would be no point in our having legislatures or executives. Congress could go; the president could go; the courts could go; written law could go; the separation of powers could go; the Bill of Rights could go; and in their place, we could put Frank Luntz.
That may sound like a joke, but it is no such thing. If, as Collinson implies, the Court should consider public opinion when it makes its decisions, then it should do so in all cases. Sure, the Constitution doesn’t allow the president to raise taxes on his own. But what if raising taxes is popular, and if preventing him from doing so would create a “charged atmosphere”? Sure, the Constitution doesn’t allow even the most popular of presidents to run for a third term. But what if Gallup says he’d win the next election in a walk, and to uphold the 22nd Amendment would annoy voters? Sure, the Constitution doesn’t allow the prosecution of people for acts that were not criminal at the time they were committed. But what if declining to allow such charges leads to death threats against judges?
As Antonin Scalia pointed out in A Matter of Interpretation, the existence of formal institutions requires the use of formal institutions — yes, even in such cases as their application frustrates the majority, pushes the question to a different branch, or delays what observers may believe to be a foregone conclusion:
Of all the criticisms leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form. A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men.
The law is the law. And, until it is changed, it remains the law, irrespective of what the majority might want, how “charged” the atmosphere might become, and how many people try to murder or intimidate those whose job it is to uphold it. That’s not a problem to be fixed or bemoaned; it’s the basis of all civilization.