People keep talking about the Supreme Court being “out of step with public opinion.” You know when the Supreme Court was totally in step with public opinion? When it decided Korematsu. And when it decided Plessy v. Ferguson. You know when it was out of step? When it decided Miranda v. Arizona. So some of the worst decisions ever made by SCOTUS came when the justices heeded public pressure, and some of the best when they ignored it. This wasn’t always true; but sometimes. Often enough to be a matter of note.
Many people decry SCOTUS as “unaccountable,” which simply means that justices can’t be removed when they make unpopular decisions. But Justice Robert Jackson’s dissent in Korematsu, one of the greatest moments in the history of the Court, would probably have led to his removal if justices had been thus “accountable” — which in turn would have denied us his vital role in the Nuremberg trials and also his later SCOTUS opinions, for instance in Youngstown Sheet & Tube Co. v. Sawyer, a case that did much to set limits on Presidential power. Many other cases involving many other unpopular justices could be cited.
So be careful what you ask for. Public opinion won’t always be flowing in your preferred direction. In my view, the court is already — and probably always has been — too sensitive to public opinion. I’d prefer it to make more decisions that people don’t like, and to tell those people that if they want something different they should elect representatives who, instead of auditioning for careers on TV news, will pass better laws.
