Posted June 15, 2006

By M. Roberts

   The Pew Research Center released a poll June 15, 2005 indicating an increasingly negative perception of the Supreme Court among the American people. An article by the Associated Press documenting the poll suggests that Americans tended to perceive the Court more negatively when it does not support their political views. One quote from the article is particularly striking, since it seems to capture a common misconception among Americans about the proper role of the courts. According the Associated Press, the poll shows that the “public is evenly split on whether they want President Bush to select a nominee who will move the court in a more conservative or more liberal direction.” ¹ Because of such a statement, somebody who does not understand the proper role of a judge might view the Supreme Court, or the courts in general, the same way as the Congress - a body that moves right or left in its “agenda” depending upon whether conservatives or liberals are in the majority. In other words, if liberals are a majority on the Supreme Court, then its decisions will tend to support policies that appeal to liberals. Conversely, if conservatives are a majority, then Supreme Court decisions will tend to support policies that appeal more to conservatives. The issue is not so much whether or not this happens, but whether or not it should happen. The terms “conservative” and “liberal”, as they relate to modern political ideologies, are irrelevant to the proper role of the judiciary. Alexander Hamilton described the judiciary in Federalist #78 as having “neither force nor will, but merely judgment”.² In other words, the courts only have the power to render judgment on the law, not enforce it or change it. If a judge rules with a political end in mind, conservative or liberal, he sheds his neutrality with regard to the law and substitutes his “judgment” for “will”. He, in effect, has become a legislator and changed the law because his decision will influence subsequent court decisions. This is very dangerous to liberty because judges, being appointed instead of elected, are unaccountable to the people. The people have no recourse against policy created by the judiciary.

   It is important that the public begin to understand that they need to consider qualifications over ideology with regard to judicial nominees. What is important is that the nominee be able to discern the meaning of the law and rule in strict accordance with it. The courts should not move in either a “more conservative or liberal direction”. For the sake of liberty, they should simply decide cases based on the written text of the law, regardless of the political views of the judges.

1. Poll: Public Image of Supreme Court Falls. (June 15, 2005). Retrieved June 15, 2005, from http://news.yahoo.com/s/ap/20050615/ap_on_go_su_co/supreme_court_attitudes

2. The Federalist #78. (n.d.). Retrieved June 15, 2005, from http://www.constitution.org/fed/federa78.htm