FREE ESSAY ON SUPREME COURT'S REACTIVITY TO POPULAR WILL IN MODERN TIMES

SUPREME COURT'S REACTIVITY TO POPULAR WILL IN MODERN TIMES

The Supreme Court safeguards much of its power by creating walls to separate its power
from public opinion and political pandering. And while impartiality is undoubtedly the
preeminent characteristic desirable in a justice, it is impossible to nominate a human
being that is not at least partially fallible and swayed by the society around him. 
The Warren Court of 1953 to 1969 perfectly illustrates the concurrent philosophies of the
Court with the prevailing political party of the day. The growing thought of the time was
for increased civil rights and an activist government. President Eisenhower integrated
the military and was a strong voice for racial reconciliation. John F. Kennedy and Lyndon
Johnson were liberals who were both interested in achieving the Great Society, with
racial equality a chief goal. In 1954 the Warren Court unanimously followed the trend of
the time, and ruled in Brown v. Board of Ed. that separating blacks from whites was
inherently unequal, thereby paving the way for the entire civil rights movement. In '64
the court continued to reflect public opinion, when it chose to accept the very loose
interpretation of the interstate commerce clause to further it's activist agenda in the
Heart of Atlanta Motel Case, by saying blacks could not be barred from staying in private
establishments. The Warren Court reflected the prevailing Democrats in criminal rights as
well. Between '61 and '66 the Mapp, Gideon, and Miranda cases all dramatically increased
rights of the accused, simultaneous to the most rampant popularity of the Democrats. The
Warren court championed separation of church and state, in Engel v. Vitale ('62) and
Abbington v. Schempp ('63), and freedom of speech, in Tinker v. Des Moines ('69), as did
its Democratic counterparts in Congress and the White House. Of course it is important to
recognize that the Warren Court was not merely a knee jerk respondent to public opinion.
Many of its decisions were close, and very unpopular in large chunks of the country. The
Republicans and the splintering conservative South found most of these rulings appalling.
As George Wallace's successful 3rd party run in '68 proved, there was quite a large
percentage of the country that was vehemently against the Warren Court's decisions.
Following the example of the Warren Court, one would expect the ensuing Burger Court to
be wholly conservative, reversing many of the Warren decisions, under conservative
influence by Presidents Nixon, Ford and Reagan. However, such was not wholly true. The
Burger Court did take a blow at the liberal affirmative action in Bakke v. California
('78), and affirmed the presidential gay bashing in Bower v. Hardwicke ('86). However,
the Burger Court hardly created the rightist haven Nixon and Republicans had been hoping
for upon Warren's retirement. The Burger court struck a powerful blow for activism in
1973 when Roe v. Wade when it extended the right to privacy to abortions, making them
legal throughout the country. Following that decision the Burger court continued to
expand abortion rights. The Burger court also firmly protected encroachment by religion
into public schools. Lemon v Kurtzmeyer ('71) finally articulated in no uncertain terms
the rules for keeping religion out of schools, and they were strikingly liberal. These
decisions were hardly at the behest of the elected government, proving the Supreme Court
is hardly willed by what party or what type of people are elected. The perfect example of
the Supreme Court's disassociation with the elected government is the unanimous Burger
Court ruling in 1974's U.S. v. Nixon, which required Nixon to give over his private
tapes. If the Supreme Court is unanimously ruling against the President, a President who
appointed justices who would cast votes against him then it becomes quite obvious that
the Courts feel little if any overt obligation to protect the interests of those who put
them there. Once again, all of these decisions were under much strife, particularly on
abortion rights, where the votes were usually as close as possible, 5-4. So to claim that
the Court was following anything is outright ludicrous, because had just one justice been
inclined differently, this argument would have no legs to stand on.
It is the very structure of the Supreme Court which is intended to protect the decisions
from following election returns. Justices are given life terms so they can remain
impartial and not have to garner favor from the political machine in order to keep their
positions. And since it is a life term, liberal justices appointed by liberals will be on
long enough to influence decisions under conservative presidents, and vice versa. And
even though a court might be named after its chief justice, who very well may reflect the
presidency, who appointed it, the chief justice is still only one vote of nine. In terms
of the checks and balances of the Court system, the constitution has provided amply. 
The Rhenquist court, appointed by Reagan, has been more dedicated to party lines. With
Federalism as its chief goal, the court has increased states' rights, and limited its own
scope. In determining the constitutionality of the Gun Free Schools Zone Act, the Court
rejected extension of the interstate commerce clause and struck the act down. The court
also limited its own power to hear death penalty cases on the grounds of habeas corpus.
The scaling back of government power is exactly what the Reagan administration would have
wanted. However, the second half of the court's tenure has come under the Democratic
Clinton administration. Yet the conservative decisions have continued. The Court has
expanded police rights in search and seizure, expanding probable cause to so much as
running away from a crime scene. These are hardly following suit of the election returns.
Even further, abortion is continually being threatened, with just a consistent 5-4
upholding vote on any new cases heard. This extremely close vote hardly reflects the
abortion champions in the Clinton-Gore White House.
The Supreme Court is obviously in some relation to the popular will. The Justices do not
act blindly to the circumstances of the nation, because they are people affected by the
circumstances of the nation like anyone else, and are given power by men elected by the
general will. However, it is both their responsibility and goal to act blind to the
relative situations they encounter, and determine what is objectively right and just
according to the United States Constitution.