favor. Indeed, some would contend that any concerted attempt to align the Court’s decisions with the preferences of political majorities tends to overlook that the Court’s obligation is to the Constitution and laws. From this point of view, if the Court’s decisions are not favored by current political majorities, that may simply be the unavoidable consequence of a system in which the judiciary is expected to interpret and apply the law, not to do politics. Indeed, some of the Court’s most consequential decisions on subjects ranging from school prayer to criminal justice were quite unpopular when first issued.[55] Even if misaligned with public opinion at first, the Court’s decisions may garner support as the “popular will” changes over time. Brown v. Board of Education was met with significant resistance when it was issued, for example, but is now one of the most respected Supreme Court decisions in history.[56]
Further, the severity of any misalignment between the Supreme Court and popular opinion is debatable. Some legal scholars argue that the Court has, for much of its history, issued decisions that generally reflect the wishes of the public.[57] Still, those who criticize the current Court on the basis of misalignment may see the present circumstances as meaningfully new and different from past ones, and thus may not see history as a reliable guide on this point. In any event, however, identifying whether misalignment exists is not straightforward. There is no obvious way of distinguishing between cases where the Justices have simply reflected the policy views of an earlier generation and those where they have provided a valuable and principled counterweight to majoritarian excesses. Moreover, there are historical examples of dominant political coalitions that tried to entrench themselves in the judiciary by systematically appointing Justices with certain views, only to have those very appointees decide cases in ways that diverged from the preferences or platforms of the appointing party.[58] This last point cuts against any assumption that nominees to the Court are nothing more than political instruments of the Presidents who nominate them.
Ultimately, Commissioners hold different views on the extent to which misalignment is a problem and on whether the Court is sufficiently deferential to the political branches. Throughout this Report, however, we address and take seriously these democracy-related concerns as we evaluate the various proposals that seek to advance different conceptions of democracy.
