The Washington Examiner/YouGov poll published on Wednesday reveals a public passionate about, and deeply split on, the Supreme Court. Perhaps surprisingly, given this, it also reveals a public averse to extremes.
For fully 79%, the appointment of a new justice will weigh heavily when they vote in the presidential election, with 58% regarding it as “very important.” But agreement here doesn’t imply concurrence over how the matter should be handled; 51% say the nomination should wait until after the election and 42% want it done now. The poll’s 3.6% margin of error means that split could be as close as 47%-46%.
But the public unites again in opposing Democrats’ threat to pack the court with liberals if President Trump and the Senate create a 6-3 conservative majority by pressing ahead and confirming Amy Coney Barrett swiftly. Only 30% want a liberal court and 16% want a conservative one, while 47% want it to be balanced.
Abortion sunders this agreement again with 42% saying individual states should make their own rules if they wish, and 43% saying federal courts should be allowed to strike those rules down. This matches a sharp divide on judicial philosophy where 42% believe in a “living Constitution,” the meaning of which should be changed by justices to fit modern standards, while 46% are “textualists,” who want justices to stick to a traditional understanding of the document’s words.
What most people don’t “get,” and it’s something Republicans do a scandalously bad job of explaining, is that voters who dislike extremes in politics should want a conservative court and, even more specifically, should welcome early Senate confirmation of Barrett.
This may seem counter-intuitive given that the justice has been tarred by the usual left-wing suspects as an extreme right-winger. But having textualist justices doesn’t produce courts that impose right-wing policies; it means having courts that refuse to decide such matters. It doesn’t mean the Supreme Court would, for example, overturn high-tax policies, declare abortion or gay marriage illegal, or outlaw opulent social spending. It would simply leave those decisions to democratically elected politicians who are properly responsible for them. “Conservative,” in the judicial context, means getting rulings that are modest, restrained, and constitutionally proper. It means having courts that don’t arrogate political decisions to themselves and won’t do politicians’ jobs for them.
For decades, as fools rushing in where angels fear to tread, federal courts handed down rulings purportedly based on the Constitution where, in truth, the document is silent. Abortion is only the most glaring and explosive of these. For decades, honest constitutional scholars on the Left as well as on the Right, have acknowledged that Roe v. Wade was an aberration invented to install a liberal policy on which the Constitution has nothing to say.
But consider the wider picture of justices making law rather than interpreting and administering it. If lawmaking is taken out of the hands of Congress — more accurately, one should say that Congress abandons lawmaking — there is no incentive for members to seek agreement with each other. Left and Right can dig in their heels, refuse to give an inch, and throw the decision to unelected judges whom they hope will take their side.
If courts, especially the Supreme Court, instead retorted, “Oh no you don’t,” and threw political issues back to Congress, it would force our representatives to be more flexible and dial back their fighting, which the public hates. If, in other words, the Supreme Court were guided by textualist philosophy, it would oblige the legislature to legislate. Members of Congress would be forced to compromise and to meet somewhere in between their extremes.
Politicization of federal courts, especially the Supreme Court, is probably responsible for the worst of the extremism that the public perceives in Congress. If the courts are political, elected officials need not govern from the middle where most of the public spends its life. Political courts thus lead to unrepresentative government.
If the public wants more agreement in politics (which it does), it should, therefore, not want a “balanced” Supreme Court, split evenly between Left and Right, it should want one that hews to the textualist or originalist jurisprudence that Trump and Senate Republicans are now trying to put in place.
If you’re fed up with Congresses that get nothing done, in which elected representatives spend their time not legislating but denouncing each other, you should welcome what is happening on the Supreme Court. Return judging to what it is meant to be, and you will yank the leash of politicians, forcing them to do the job you send them to Washington to do.
