Tuesday, June 26, 2012

Should public opinion matter to the Supreme Court

Slate's Dahlia Lithwick says the lesson of the Supreme Court's summary reversal of the Montana Supreme Court campaign finance decision is "that the sense of lingering public outrage over Citizens United—deserved or not—influenced the court not one little bit on this issue."  The articles headline (which I assume Ms. Lithwick did not write) is even more blunt:  "The court’s conservatives don’t care how much you hate Citizens United."

Setting aside the rather obvious point that nothing suggests that the justices who dissented in Citizens United care about how much people might dislike Citizens United, lesson Ms. Lithwick finds begs the question of should the Supreme Court care about the public outrage over its decisions. 

I tend to think that the answer to the question is no, they should not care.  Vast majorities of people in the South were outraged over the decision in Brown v. Board of Education.  Should the Court have ruled the other way because the majority would have preferred a different result?  In the criminal law aren both Gideon v. Wainwright and Miranda v. Arizona cases were very unpopular.  Does this mean that the Court should have decided that the indigent are not entitled to attorneys in criminal cases or that people are not entitled to know their constitutional rights when they are arrested?  The questions are meant to be rhetorical but in case anyone is confused each should be answered "no."

Statues of Lady Justice show her blindfolded.  I believe the reason for this so that justice can be given without regard to, among other things, the status--or popularity--of the parties before the court.  For the rule of law to work courts should not consider whether a result might be legally correct but distasteful to a majority.  

I do not particularly care for the result in Citizens United and I thought that Montana's history of corruption in its political process was sufficiently stated in the Montana case that it was distinguishable from Citizens United and the result could have been upheld.  In that sense I am disappointed that the case will not be heard.  However, I am not disappointed if the justices were not paying attention to polling about the Citizens United decision.  It would be a lot more disappointing to me if they were using popular opinion as a reason to reverse their decision.

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