The Public Frequently Disagrees With the Supreme Court

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.

Continue ReadingThe Public Frequently Disagrees With the Supreme Court

The Law and Pastries

In law school, we learn to “think like a lawyer.” As the fictional Professor Kingsfield put it, we develop “the ability to analyze that vast complex of facts that constitute the relationships of members within a given society.” We learn the rules under which those relationships operate, and the theory and reasons behind how we handle things when those relationships go sour. We begin to see the world around us in a different light – the light of the law.

Torts got me first. I was seeing standards of care, the illusive reasonable man, and potential negligence wherever I went – except at my house, where we always behave reasonably and prudently. Contracts are no longer something I quickly sign and shove back across the counter. Don’t get me wrong, I only read them for entertainment value before signing. After all, I want my iPhone, and there is a reason they’re called adhesion contracts. Property’s spell struck when I encountered a private driveway, which crossed a county bike trail, which ran along a We-Energies right of way. I’ll leave constitutional law and criminal law to your imaginations, but I will say that I haven’t had to invoke any of my rights, nor has anyone had to read them to me. Finally, although I didn’t encounter it in real life, civil procedure did haunt my dreams for a while. Fortunately, new areas of the law from my summer session courses have started to edge out the 1L voices in my head.

One course, intellectual property, has me seeing trademarks and copyright disputes all over the place. Like everyone else, I had been seeing trademarks everywhere for my whole life, I just didn’t know what a trademark was. As I learned trademark law, I remembered a story from my hometown’s recent past. It was big news at the time, but it is likely unfamiliar to people who are not from Racine, Wisconsin. (For those of you not familiar with Racine, it is a lovely city located about 30 minutes south of Milwaukee. Among other things, Racine features an award-winning beach, excellent local government, and kringle.) I’ll have more on the local government in a future posting. For now, I want to talk about pastries.

The story begins long ago, when a wave of Danish immigrants settled in Racine. Like other immigrant waves throughout our history, the Danes brought their food here. In this case, they brought kringle, a large, tasty, pretzel-shaped pastry. At some point, Racine bakers swapped the pretzel shape for an oval shape and the Racine kringle was born. For decades, Larsen’s, Lehmann’s, O & H, and Bendtsen’s bakeries prepared and sold delicious Racine kringles. There was plenty of room in the market for all of the competitors to do well, and the good people of Racine, and many lucky visitors, ate their fill of these tasty treats. All was well in kringle-land.

Then, in the 1990’s, as the rise of online sales was taking kringle beyond our borders, a new player emerged on the scene: Racine Danish Kringles (RDK). 

Continue ReadingThe Law and Pastries

For Punishment, Do Costs Count?

In my previous post, I discussed some of the fascinating results from the recent Marquette University Law School Poll, in which about 700 Wisconsin residents were asked various questions about crime and punishment. In this post, I’ll consider what the Poll results have to say about a crucial question for sentencing policy and politics: do costs matter, or are the interests served by punishment of such overriding social importance that expense is no object at sentencing?

This question is related to another question I raised in the previous post: is punishment valued more in instrumental or symbolic terms? If people look to punishment primarily as a way to decrease crime and increase public safety (the instrumental approach), then costs seem to have a natural place in the equation. As much as we value our safety, there are always limits to what we are willing to spend to protect ourselves. Few of us hire body guards, or purchase bulletproof vests, or build panic rooms in our homes — the small reductions in risk that we would enjoy simply do not seem worth the cost and inconvenience, and there seems nothing odd about thinking of risk in these sorts of cost-benefit terms. But if punishment is instead viewed in symbolic terms — as making a statement about who we are as a people and what our deepest moral values are — then cost considerations seem out of place. It would make us uncomfortable to say, “X is the right thing to do, but I’m not going to do it because it is too expensive.”

The Poll did not ask the big philosophical question about costs directly, but several questions seem to get at it indirectly. The answers suggest some real ambivalence and division in public attitudes. 

Continue ReadingFor Punishment, Do Costs Count?