Don’t confuse the Supreme Court’s role with that of legislators

Supreme Court Justices pose for group photo with newly sworn in Justice Amy Coney Barrett on April 23, 2021
New York Times/Pool
The U.S. Supreme Court justices are shown in an April 23, 2021, photo.

I’m not sure if we should pin the blame on our educational system, or whether the problem is with partisans who block out everything that calls into question their set-in-stone biases. But one way or another, it’s astounding that supposedly intelligent adults still don’t understand the role of the Supreme Court of the United States.

I think it was in seventh grade when I learned about the three branches of government and about how the role of the Supreme Court is to interpret the laws of the land and rule on their constitutionality — not decide cases to please a majority of the population. 

I bring this up because the other day I was reading an opinion piece in the New York Times and came across a paragraph that stopped me cold. Written by Margaret Renki, a frequent Times contributor, it said, “The majority of Americans did not want the Court to overturn Roe. They don’t want to be surrounded by guns. They are deeply worried about climate change. With these Supreme Court rulings, the law of the land no longer reflects the will of the people who live here.”

It was that last sentence that got to me. Do progressives really believe the Supreme Court is supposed to make decisions based on “the will of the people who live here”? Isn’t that the job of legislators? Does it not occur to them that there’s a good chance the Supreme Court didn’t reflect the will of a whole bunch of people who live here when it ruled in 1954 that racial segregation in public schools is unconstitutional?     

Renki, of course, is not alone in feeling the way she does. A lot of liberals and progressives are outraged by the court’s recent decisions. There’s something wrong, they tell us, when a few judges in black robes can make decisions that affect millions of Americans. Did they complain when a few judges in black robes found a constitutional right to abortion back in 1973? Are the court’s decisions legitimate only when liberals and progressives agree with them?

The Supreme Court didn’t say abortion is a good thing or a bad thing; it didn’t say abortion is moral or immoral. All it said in Dobbs v. Jackson Women’s Health Organization is that the court’s decision in 1973, finding a constitutional right to abortion, represented an “abuse of judicial authority” and that it is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

That reasoning is not good enough for a very angry Sen. Elizabeth Warren (D-Mass.), who said the justices had “burned whatever legitimacy they may still have had” and that “they just took the last of it and set a torch to it.”

If they handed out Olympic medals for tossing rhetorical hand grenades, Warren would be standing on the podium while they put gold around her neck. I mean, the woman used to teach law at Harvard, for crying out loud. Surely she understands the role of the Supreme Court.

So, then, what’s all this hand-wringing really about? Here’s a theory: The left over the years has looked to the Supreme Court not so much to simply interpret the Constitution, but as an institution that would reliably deliver policy results they wanted but couldn’t get from Congress — policies on abortion, affirmative action, guns and other hot social issues.  

When they got the results they wanted, the court was a shiny gem — the cornerstone of rights, liberty and everything good about America. But when the results went the “wrong” way, the court was autocratic, undemocratic, imperial.  

Now that there’s a new sheriff in town, so to speak — the conservative justices who make up a majority of the court are making it clear that they’re not there to render decisions that make progressive activists happy. Sometimes their decisions will, and sometimes they won’t. But however they decide controversial issues, the justices’ job is to be neutral arbiters of the law.  This seemingly obvious observation is seen by the progressive left as a kind of betrayal, as an act of aggression, and so it’s not sitting well with a lot of them, or their media allies for that matter.

Never mind that all the court did in overturning Roe was to extricate itself from the issue of abortion and turn the matter over to the American people through their elected representatives.  However you feel about abortion, if you’re a fan of democracy, this isn’t such a horrible thing.

And so, even if Margaret Renki is correct when she says in the Times, “With these Supreme Court rulings, the law of the land no longer reflects the will of the people who live here,” someone needs to remind her — and a lot of other progressives — that it’s not the job of the justices to take a public opinion poll or hold their fingers up to the wind before rendering a decision. You don’t have to go to law school to know that. We learned it back in seventh grade.

Bernard Goldberg is an Emmy and an Alfred I. duPont-Columbia University award-winning writer and journalist. He was a correspondent with HBO’s “Real Sports with Bryant Gumbel” for 22 years and previously worked as a reporter for CBS News and as an analyst for Fox News. He is the author of five books and publishes exclusive weekly columns, audio commentaries and Q&As on his Substack page. Follow him on Twitter @BernardGoldberg.

Tags Dobbs v. Jackson Elizabeth Warren progressives Separation of powers Supreme Court of the United States

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