The public's growing disdain of the Supreme Court
increases the odds that a majority will uphold the constitutionality of
The latest New York Times CBS Poll shows just 44 percent of Americans
approve the job the Supreme Court is doing. Fully three-quarters say
justices' decisions are sometimes influenced by their personal political
The trend is clearly downward. Approval of the Court reached 66
percent in the late 1980s, and by 2000 had slipped to around 50 percent.
As the Times points out, the decline may stem in part from
Americans' growing distrust in recent years of major institutions in
general and the government in particular.
But it's just as likely to reflect a sense that the Court is more
political, especially after it divided in such partisan ways in the 5-4
decisions Bush v. Gore (which decided the 2000 presidential race) and Citizen's United (which in 2010 opened the floodgates to unlimited campaign spending).
Americans' diminishing respect for the Court can be heard on the
right and left of our increasingly polarized political spectrum.
A few months ago, while a candidate for the Republican presidential
nomination, Newt Gingrich stated that the political branches were "not
bound" by the Supreme Court. Gingrich is known for making bizarre
claims. The remarkable thing about this one was the silence with which
it was greeted, not only by other Republican hopefuls but also by
Last week I was on a left-leaning radio talk show whose host suddenly
went on a riff about how the Constitution doesn't really give the
Supreme Court the power to overturn laws for being unconstitutional, and
it shouldn't have that power.
All this is deeply dangerous for the Court, and for our system of government.
Almost 225 years ago, Alexander Hamilton, writing in the Federalist
(Number 78, June 14, 1788) noted the fragility of our third branch of
government, whose power rests completely on public respect for its
"The Executive not only dispenses the honors, but holds the sword of
the community. The legislature not only commands the purse, but
prescribes the rules by which the duties and rights of every citizen are
to be regulated. [Yet lacking sword or purse, the judiciary] is in
continual jeopardy of being overpowered, awed, or influenced by its
co-ordinate branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public
justice and the public security."
The immediate question is whether the Chief Justice, John Roberts,
understands the tenuous position of the Court he now runs. If he does,
he'll do whatever he can to avoid another 5-4 split on the upcoming
decision over the constitutionality of the Obama healthcare law.
My guess is he'll try to get Anthony Kennedy to join with him and
with the four Democratic appointees to uphold the law's
constitutionality, relying primarily on an opinion by Judge Laurence
Silberman of the Court of Appeals for the District of Columbia -- a
Republican appointee with impeccable conservative credentials, who found
the law to be constitutional.