Nobody would consider having a frat party without beer, nor would you imagine celebrating Constitution Day without the Constitution.
This year, to fulfill requirements proposed by Senator Robert Byrd and enacted by Congress in 2005, Bucknell celebrated Constitution Day by inviting author and George Washington University Law School professor Jeffrey Rosen to speak.
Despite its deliberately provocative title, Supreme Personalities: Is the Roberts Court on a Collision Course with America?, the speech was mild. Rosen offered anecdotes and opinions about many of the Court’s current justices and the future of the Court. Ironically, for a speech given on Constitution Day, the most fundamental issue concerning the Supreme Court was not addressed: the relationship of the Court to the Constitution.
Justices’ views concerning the roles of the Constitution and judiciary are immeasurably important because they govern every decision handed down by the Court and, therefore, all areas of American life. The Court, in its most recent term alone, produced decisions concerning free speech in schools and political advertising, school busing, and partial birth abortion.
But Rosen did not focus on the Constitutional views of the justices that shaped these recent Court decisions. Rosen spent the early part of his speech discussing Chief Justice Roberts’s intentions to build a unified Court. He contrasted Roberts’s intentions with the fact that many of the Court’s recent opinions were decided by 5-4 majorities. He stressed that Roberts’s success will depend on his ability to refrain from becoming too ideological and maintaining a willingness to compromise.
Rosen’s focus illustrates the problems inherent in many of the current debates regarding the Court. Ultimately, it is not public opinion or multiple 5-4 decisions that will determine the success of the Roberts Court; it is the Court’s faithfulness to the Constitution. The purpose of the Court is not to produce unanimous decisions or maintain a high approval rating; it is to ensure that laws and governmental actions do not violate the Constitution.
The moment the Court becomes concerned with its own popularity, it is no longer able to fulfill the purpose for which it was created. Thus, the Court should make its decisions based on the statutes and rights outlined in the Constitution – not on the wishes of the public.
Justice Antonin Scalia described the inherent dangers of decisions influenced by the majority’s opinion saying, “The only reason you need a Constitution is because some things you don’t want the majority to be able to change.” The role of the Supreme Court is to guarantee that the rights enshrined in the Constitution are protected, not to create decisions it believes will be popular with the American public.
In his speech, Rosen stressed that for Roberts to be successful he must be willing to compromise and the Court should not push ideas the country is not willing to accept. He offered Roe v. Wade as a notable example of the consequences of overstepping popular opinion. Rosen believes the decision has become immensely controversial because public opinion did not support access to abortion during the later stages of pregnancy.
Rosen’s statement, however, ignores the fact that many people vehemently object to Roe v. Wade because the Court should never have ruled on the issue. Abortion is not addressed in the Constitution and, therefore, it is a matter for the public to decide. If the Court had not departed from the Constitution in its decision, the public would have the ability to address the issue through state legislatures. It is the Supreme Court’s responsibility to secure the rights of states and individuals.
Rosen’s argument is inherently contradictory regarding the purpose of the Supreme Court and its public approval. A Court that does not rule to protect the rights of the minority against the excesses of the majority essentially defies its original intent. But when the Court rules to protect the rights of the minority, the decision will naturally be unpopular with the majority and will likely produce sharp divisions among the justices. Therefore, a Court that embodies the original intent of the Framers and the Constitution cannot concern itself with public perception and politics.
In the end, Rosen’s speech did not display a bias against either conservative or liberal ideology; his problem was the standards that he used to determine the success of the Roberts Court. The debate should not be about whether the Court is on a collision course with America, but whether certain justices are on a collision course with the Constitution.