Check out the story in the New York Times concerning the sinking public stature of the Supreme Court. Adam Liptak, Approval Rating for Justices Hits Just 44% in News Poll, N.Y. Times, June 6, 2012. Click here.
Only 44% of Americans approve of the job the Supreme Court is doing. “Those findings,” says the Times, “are a fresh indication that the court’s standing with the public has slipped significantly in the past quarter-century, . . . Approval was as high as 66 percent in the late 1960s, and by 2000 approached 50 percent.”
What has caused this decline in the court’s stature? A “growing distrust in recent years of major institutions in general and the government in particular,” says the Times. And here comes the ideological pitch. Howsomeever, says the Times, this “could reflect a sense that the court is more political, after the the ideologically divided 5-to-4 decisions in Bush v. Gore, . . .and Citizens United, . . .” (Emphasis added). But no mention of the wretched 5-to-4 Kelo decision which resulted in a higher rate of public disapproval (and anger) than any other decision in recent decades. Oh sure, there have been several decisions that were and remain highly controversial, but in those the citizenry was split wide open on the issue — Roe v. Wade comes to mind on that score — but in no SCOTUS decision other than Kelo, to the best of our knowledge, were the public disapproval figures so lopsidedly one-sided. If you think we’re wrong on that one, point out to us another SCOTUS case decided in the last 100 years, where the rate of public disapproval ran around 90% and inspired some 30 states to change their laws, presumably — or at least ostensibly — to prevent Kelo-style takings in their respective jurisdictions.
Of course, none of our remarks are meant to suggest that the court should shape its interpretation of constitutional provisions to appease public opinion, Finley Peter Dunn’s celebrated, fictional Mr. Dooley to the contrary notwithstanding — it was Mr. Dooley who famously oberved “I don’t know if the Constitution follows the flag, but I know that the Supreme court follows election returns.” But humor aside, when interpreting an explicit constitutional provision, the court has no option other than to follow it, no matter how unpopular its decision may be. That is in the best tradition of an independent judiciary. But when the court starts inventing constitutional rules that are nowhere to be found in the text of the constitution, or ignores constitutional provisions that are plainly there, that’s another story. This is something that goes back to Confucius who counseled that the most important function of government is to see to it that things are called by their proper names because otherwise, among other things, judgments are unjust and the people are at a complete loss.
For example, when Justice Stevens opined in Kelo that “public purpose” is a more accurate meaning of “public use,” he not only confused the bases of two distinct modes of government operation — the noncompensable regulatory police power serving public purposes, with the acquisitory, compensable power of eminent domain that is limited to public uses — but he also uttered a liguistic absurdity. Why? Because it is a total certainty that should Justice Stevens drop in on his neighbor to borrow a lawnmower, he would not deem it more accurate to say “May I purpose your lawnmower?” No way. He would say “May I use your lawnmower.” Why? Because use is not the same as purpose — e.g., the purpose of redevelopment may be the elimination of slums, as in Berman v. Parker, but the use of the taken property was private, not public; i.e., construction of privately owned and privately controlled office buildings, condos, and commercial facilities. Maybe that arguably served a public purpose, but it wasn’t a public use. And the Constitution limits eminent domain takings to public uses.
Bottom line: ideas have consequences. When the Supreme Court sets out to govern — to set public policy on controversial issues — it should expect that this will embroil it in public controversies, the same as in the case of all political, policy-making institutions. That’s the way it is.
Finally, it cannot go without mention that when it comes to eminent domain being used for redevelopment — as in Kelo — the New York Times has a conflict of interest. The Times operates out of a building in midtown Manhattan, that was built on land taken from local property owners, and turned over to the Times and its developer at friendly prices that smell of a sweetheart deal.
This post was amended at 11:50 am, Eastern Time.