The Supreme Court is dominating the Second Amendment news at the moment, and for understandable reasons. The case that will be before the Court next month is likely to be the first decision of the second amendment since then McDonald a decade ago. That ruled that the Second Amendment also applied to state and local governments, a key ruling that is likely to play a much bigger factor in the future than many believe.
Now, the case that comes first is about covert carry, and a lot of people are freaking out about it.
Furthermore, some are concerned that the Court is not paying attention to public opinion.
The Supreme Court is more conservative than it has been in nearly a century. His new term begins today and by next June, when the term expires, Americans could finally understand what it means. Public opinion in the court is already at an all-time low after the court allowed a strict abortion law to take effect in Texas in early September. Now, the judges are preparing to hear the court’s first major gun rights case since 2010 as well as a case on the future of abortion in the United States. Either case could lead to far more extreme decisions than most Americans want.
In the past, the desire to preserve the court’s apolitical reputation has prevented judges from straying too far from public opinion. It could happen again – in fact, Chief Justice John Roberts has so far proved extraordinarily adept at producing decisions that protect the court’s reputation and are often described as more moderate and traditional than they really are.
The judges are already entering the mandate with mixed reviews from the general public. A Marquette University Law School poll conducted in September found that only 49 percent of Americans approved the court, down from 60 percent just a year earlier. A Gallup poll conducted in September found a similar decline: only 40 percent of U.S. adults approved of the court, down from 53 percent the year before. According to Gallup, a majority (53%) of US adults now disapprove of the way the court is handling their work.
In theory, judges should have no reason to look at their poll numbers. Our system is actually designed this way: Federal judges have a lifetime mandate in part to insulate them from the vagaries of politics. But research suggests that judges are influenced by what Americans think, at least to some extent. For example, several studies have found that the Supreme Court’s ideological bias follows public opinion over time, which is unlikely to be a coincidence. And Tom Clark, a political scientist at Emory University, found in a separate review of Congressional bills that when Congress introduced more bills designed to curb the court, the judges overturned fewer laws. According to Clark, this suggests that the court saw the bills as a signal from Congress that they were going too far, even though they were unlikely to be passed.
This is exactly the point.
The popularity of the Court is neither here nor there. The Constitution set a lifetime appointment just to be immune from public opinion. The fact that they have been so concerned over the years is particularly problematic.
All the Supreme Court should worry about is whether a given law is constitutional or not.
After all, public opinion can be wrong about any number of things. Indeed, it was. Once upon a time, eugenics was popular, for crying out loud. To say that public opinion cannot be wrong is to challenge reality.
The independence of the Court was established so that they could rule as needed without worrying about keeping their jobs. Politicians must take public opinion into account. Judges shouldn’t.
If the Founding Fathers had wished otherwise, they would have asked the public to directly elect judges for a term very similar to the executive and legislative branches. Then public opinion would prevail because judges would have to consider the impact of their decisions on their chances of re-election.
They didn’t, though.
Instead, they decided that the judiciary should receive life appointments so that it can operate independently of public opinion.
In other words, the fact that the Court can ignore public opinion on a Second Amendment issue is not a bug in the system. It is an explicit feature.
While many people on the left are condemning it right now, they will love it when it works in their favor. I’m at least consistent enough to stick to it regardless of whether I like what they govern or not.
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