The scene outside the Supreme Court last week during the oral arguments about the Affordable Care Act was an impressive display of democracy. There were the pros, the antis, and a bunch of people who were there to raise issues that didn't seem directly tied to the healthcare legislation. Despite a couple of vocal confrontations, the demonstrators were remarkably civil to each other. Those on opposing sides even held each others' places in line for viewing tickets to accommodate bathroom breaks.
But one sign displayed a somewhat disturbing view of democracy, and that is the one that read, "USA-Gallup: 72% Say Unconstitutional."
It's baffling why any polling operation would ask the general public such a question, since, of course, 72 percent of the American public are not lawyers, let alone constitutional scholars (although here in Washington, it sometimes feels like 72 percent of the people you run into are lawyers). There's a reason we have the judicial branch, and it is so that experts in constitutional law can assess, based on their education and learned reading of precedent, whether a law violates the constitution.
This is not always clear cut; jurists, obviously, have different interpretations of the law and the elasticity of the constitution. Nor is the back-to-basic approach advocated by supposed strict constructionists always the most sensible one. One can't imagine even the most conservative judges or justices deeming the Air Force unconstitutional, since the constitution only provides for the creation of an army and a navy.
But while courts have clearly adapted to modern mores over the decades, they are not supposed to be influenced by public opinion. So while it's great that protestors and advocates on both sides made their views known outside the Supreme Court walls, it would be appalling for the high court were to take serious notice of it.
The poll on whether Americans feel the law is constitutional is even a worse precedent. Is the idea not just that the justices should be influenced by public opinion of policy, but also directed by whether nonexperts believe the law is constitutional? Why have courts, if we are to decide things by taking a poll? If we had let polls direct the civil rights debate, the courts surely would have upheld separate-but-equal laws for far longer.
Whatever the court decides, it's going to annoy a segment of the voting public. But the worst option would be for the court to be influenced by those voters.
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