US public opinion and unelected judges

[Yellow_Cartman]

A little break from the never-ending Iraq topics that tend to rule this forum.

I found this paragraph to be an amazing statement that made me sit up and think a bit.

@Jeffery Rosen

In other words, the conservative interest groups have it exactly backward. Their standard charge is that unelected judges are thwarting the will of the people by overturning laws passed by elected representatives. But in our new topsy-turvy world, it’s the elected representatives who are thwarting the will of the people, which is being channeled instead by unelected judges.

Read the whole article
Center Court

[Hobbes]

Very interesting question, YC. As you said, an interesting article that does make one think a little.

Personally, I find myself somewhat closer to Ramesh Ponnuru’s perspective, who said this morning:

@Ramesh Ponnuru

Jeffrey Rosen argues in the New York Times Magazine that the Supreme Court, for good or ill, reflects public opinion better than elected officials do. I’ve been hearing this claim since high school. In the last several years, I’ve read it often in Rosen’s work. As smart as he is, his claim is not getting more persuasive with repetition.

Ponnuru goes on to cite an affirmative action as a good example of an area where the court (A) does not reflect public opinion (most public opinion polls show people are opposed to racial preferences), and (B) is not leading public opinion, but trailing it (i.e. there were probably more people who supported racial discrimination against Asians for university admissions 10 years ago than there are now).

My impression is that the recent marijuana case was another area where the Supreme Court was woefully out of step with public opinion (and, again, out of step in a way that shows them behind the curve, rather than in front of it).

Who knows – Rosen does have a number of examples going the other way as well. I guess for me it’s just not clear that the balance tips one way or the other.

[Yellow_Cartman]

It might be a snapshot in time presently and it sounds like he’s overstating his position a little bit. In thinking over the past few years, I don’t see how Jeffery Rosen’s assertions are true either.

Otoh, I think that there’s seems to be a development along these lines that will accelerate into a 2008 crescendo. For me, it crystallized in the 2004 presidentially elections: socially (i.e. Red vs. Blue states), congressionally (if one believes the death of moderates, and I do as compared to when Newt was Speaker) etc.

One of the points that is important to remember (which I think his article does well to point out) is the inherent checks and balances the US system has. Ironically to me, given the “hotness” of the Supremes in recent years (7-10) with many high profile cases, it is now the other branches of government that have superceded them in controversy and that black robed ones are plausibly seen as the “rational” branch. :eh: