An article in Thursday’s New York Times by reporters Adam Liptak and Allison Kopicki examined the public response to the United States Supreme Court’s recent decision in the Affordable Health Care case. Based on public opinion polling shortly after the decision was handed down, only 46% of those surveyed agreed that the case had been correctly decided.
In a sidebar, the story also noted that public reactions of this nature were not unusual.
Using past public opinion polls to determine the immediate popular reaction to landmark Supreme Court decisions, the story reported that in 17 controversial cases decided between 1954 and 2011, majority support from the American public was the exception rather than the rule.
In only 4 of the cases did as many as 51% of respondents support the Supreme Court’s decision.
Two of the four cases were, perhaps surprisingly, the highly controversial opinions in Brown v. Board of Education (54%) and Roe v. Wade (52%). In both cases, a slight majority of Americans felt at the time that the cases were correctly decided.
The other two cases that evoked the support of the majority of Americans were Boy Scouts v. Dale (56%) (allowing the Boy Scouts to exclude homosexuals) and Clinton v. Jones (59%) (allowing Paula Jones to file a sexual harassment suit against the sitting president).
If we assume that the failure to agree with a decision represents a belief that the Constitution, properly interpreted, would have produced a different result, the polls suggest that the American people as a whole have instinctively embraced the following viewpoints:
(1) Race should never be a factor in assigning students to schools. (Brown v. Board of education and Parents Involved v. Seattle)
(2) Affirmative action, on the basis of either race or gender, is wrong. (Johnson v. Santa Clara and Grutter v. Bollinger)
(3) Women have a right to an abortion if they want one. (Roe v. Wade and Gonzales v. Carhart)
(4) It is okay for a private citizen or organization to discriminate against homosexuals, and gay sex acts can be treated as crimes. (Boy Scouts v. Dale and Lawrence v. Texas)
(5) Governmental security concerns trump the First Amendment. (New York Times v. U.S.)
(6) Foreign terrorists can claim no protection under the U.S. Constitution. (Boumediene v. Bush)
(7) The amount of money spent on political campaigns can be limited. (Buckley v. Valeo and Citizens United v FEC)
(8) Politically motivated U. S. flag burning should be a crime. (Texas v. Johnson)
(9) Prayer should be allowed in public schools. (Engle v. Vitale and Santa Fe v. Doe)
(10) The president can be sued for sexual harassment while in office. (Clinton v. Jones)
(11) No one really knows who should have won the 2000 presidential election. (Bush v. Gore)
Like it or not, this is popular constitutionalism.
Thanks to Scott Idleman for calling this article to my attention.