Apparently, public support for the individual mandate in “Obamacare” has increased, at least according to a CNN poll. It’s now at over 50% support.
The SC is planning on hearing the case for and against the individual mandate in the spring.
I don’t want to talk specifically or only about Obamacare. That was just background into what inspired this question.
So, a controversial issue arises and it goes to the Supreme Court. Various polling companies do polls. Should the SC weigh what the polls say? Does a swing in the polls matter more (or less) than stable polls? Should the type of case matter? Should 90-10 polls matter more than 75-25? 55-45?
You can also talk about what you think the SC does, but I’m more interested in what you think they should do.
Definitely not. The purpose of the supreme court is to protect the rights of the minority over the tyranny of the majority. This would be totally gutted if the supremes took polling into account. The only way I could see their being justified in doing so is when they gauge the current public acceptance for certain practices in the process of ruling on such ambiguities such as what constitutes “cruel and unusual punishment”, or indecency.
I’m not even too sure that Congress should care about opinion polls. They are elected to represent their constituencies and make tough decisions. Taking America’s temperature on major issues – whether it is health care, Iraq, nuclear arms treaties, or education – isn’t a reliable way to make good, informed decisions.
I’d say that judges are even much more so obligated to make rational, informed decisions away from the heat of public debate than politicians are.
No. Unfortunately, you are throwing a softball to the Originalists who claim the Court is fixed in pre-Marbury time when reptiles were dominant (an allusion to the distant past only).
The Court should never be persuaded by popular opinion. Its most courageous decisions have been, in fact, contrary to public opinion.
In some cases, yes. Some laws are written with phrasing like “according to the prevailing standards of the community”, or the like, and a ruling on a case involving such a law must know just what those standards of the community are. This arguably even extends to parts of the Constitution: Just what punishments qualify as “cruel and unusual”, for instance?
For something like deciding whether the individual mandate is constitutional, though, no, they shouldn’t pay any attention to the polls.
No. There is a difference between the “community standards” as addressed in the Miller test and a poll based upon the flavor of the week. One can be judged over the long term, and the other is what has California in a hole that they can’t get out of.
I agree. The court should not make a ruling that says “this is legal because a majority of people want it to be”. But the court can legitimately say “this is legal because the Constitution only requires it to pass a reasonability standard and public polls show the majority of people find it to be reasonable”.
Well, obviously they shouldn’t rely entirely on a single poll, but an aggregate of polls, together with trends in them and such, could certainly be part of their reasoning.
I agree, in general, definitely not. Except, when they contemplate standards of what a “reasonable person” would do. the reasonable person standard is broader than a judge’s perspective and invariably translated into: What would a judge do. They should take into account what other “reasonable” people think when applying a reasonable person standard. Too often I have disagreed about what a reasonable person would do and instead thought, yeah, right, that’s what a supreme court justice would do, not a generic reasonable person.
If they are hired to represent constituencies, doesn’t that inherently mean doing what those people want?
Or are you just saying they shouldn’t look at the country as a whole and stick with the people they were elected to represent? Because I can get behind that.
In the early part of John F. Kennedy’s “Profiles in Courage,” he (or his ghostwriter) discusses the role of elected leaders in a democracy.
He writes that an elected representative needs to be a leader as well as being responsive to the people who elected him or her. People who are elected to office need to understand when they ought to follow their principles even though they are in conflict with what the people may want, and attempt to change the people’s minds. However, elected officials also need to understand that they are responsible to those that elected them, and they may be held accountable for straying from the reasons why they were elected in the first place. The whole upshot is that leadership does not come from being a barometer that simply measures the whims of the people and votes accordingly – that job could be done by a machine or any old “yes man.”
That great sage, Mr. Dooley of Chicago, covered this over a century ago on the subject of whether habeas corpus applied to our new territory of the Philipines:
I don’t want to sound like I’m waffling but I don’t think there is a precise standard. I’d pretty much have to take it on a case-by-case basis and decide if I felt there was a public consensus on this issue.
The existence of the standard remains constant but the level that meets a standard can shift over time. So the court should make its determination of where the standard is now.
For example, the Constitution ruled in 1789 that cruel and unusual punishments were prohibited. That standard remains in effect. But what constitutes cruel and unusual punishment can change over the years. The court should rule on the basis of what would be regarded as cruel and unusual today.
Or another example, the Eighth Amendment prohibits excessive fines. Is $1000 an excessive fine? Most people wouldn’t think it was excessive for a significant crime nowadays. But in 1789, a thousand dollars would be more money than the average person earned in twenty years.
Only in matters of relaxation of existing law. Particularly when the law in question has little legal merit or demonstrable societal benefit. I think that creating or upholding *new *law needs to be held up against a strict standard and not the court of public opinion. To use a silly example, here in Florida we have a statute that reads: It is illegal to sing in a public place while attired in a swimsuit. Suppose this somehow became a national issue and polls showed that a solid majority of the country favored doing away with this law. It would be sensible to take public opinion into account since the law is not really protecting anyone or serving the public good.
They pay attention to selective opinion polls. They listen to the 1 percent , the rich and powerful. It is silly to suggest the Supreme Court is not a political court. It has become terribly right wing since Bush. Few expect the court to decide on law any more.