The idea that judges’ decisions should be popular with elected rulers or the voters is dangerous.
On its face, the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education of Topeka is about the end of the separate but equal doctrine in public schools. But at its heart it’s about how a racial minority without political power began grasping the promise of this country’s founding – equality under the law.
The court’s decision was unanimous. But in the court of public opinion many condemned it. Predictions of angry, even violent resistance came true.
The Supreme Court unlocked the schoolhouse doors, but it could not by the force of its will end segregation. The court depended on the president to enforce its order.
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In 1957, Arkansas Gov. Orval Faubus deployed the state’s National Guard to block black students from entering Little Rock Central High School. In response, President Eisenhower sent soldiers from the 101st Airborne Division to Little Rock, and he federalized Arkansas’ National Guard.
Answering Faubus’ criticism about the court thwarting the will of the people, Eisenhower said, “These courts are not here merely to enforce integration. These courts are our bulwarks, our shield against autocratic government.”
Retired Supreme Court Justice Sandra Day O’Connor notes the Brown decision is “an exercise in accountability to the rule of law over the popular will.”
Our founders, O’Connor remarked, created the judiciary on the belief that “there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength.”
That place is not the statehouse. Elected rulers rely on polling. Courts do not.
Sometimes our best judges make unpopular decisions. They follow the rule of law and the Constitution.
An effort to replace them for doing so degrades our democracy. We don’t want a baseball umpire to reverse a call when the crowd boos. And we don’t want judges to bend to popular opinion and political pressure.
So to those who insist that judges be accountable to the people, you should ask: Should judges be accountable to politicians because they are unhappy with a court’s decision? Should judges be accountable to the “majority”? And if so, what happens to the rights of citizens who are not the most vocal, the most powerful or the most organized? And what happens to your rights when you are standing alone against the government?
When judges start thinking about what elected rulers and voters want, we stop being a government based on the rule of law. That is dangerous.
F. James Robinson Jr. is a Wichita attorney.