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Constitutional Rights are not a popularity contest

Judges sometimes make unpopular rulings, which lead to loud, strident cries of "This violates the Will of the People! How DARE this judge make such a ruling?!"

Judges have two jobs. The first is to determine the facts, based on the evidence and testimony in a case. The second — especially as you climb up the chain — is to determine whether a particular application of the law, or even a law itself, is in keeping with higher law — a state constitution, or the Federal Constitution.

While constitutions are based, ultimately, on the will of the people, the nature of the constitutional system is that they are not easily or quickly or reactively changed. That's by design, because the majority is (as any of the Founders would have told you) an important power, but a fickle and not-always-trustworthy one.

Thus, it's not surprising that judges occasionally come up with rulings that are not in keeping with the immediate, here-and-now popular will. If we were purely a democracy in such things, we wouldn't need (or want) a constitution.

Impeaching judges (or, in some states, voting them out at the next election) provides some power the people, but it really needs to be reserved for cases of clear malfeasance or incompetence, not for doing things that are unpopular. If a judge is ruling based on a constitution in a way that's unpleasant or difficult or unpopular — well, then change the law or the constitution in question. A judge is not intended to follow the popular opinion — if so, then we'd simply allow lynch mobs to do their work and be done with it.

Hey, Mike Huckabee, Here’s Why Impeaching a Pro-Gay Judge Isn’t a Great Idea
On Monday, Mike Huckabee—former Arkansas governor, failed presidential candidate, and noted misogynist—called for the impeachment of Arkansas County Circuit Judge Christopher Piazza after the judge invalidated his state’s gay marriage ban. “The Governor,” Huckabee proclaimed in a statement, “should call a special session of the legislature and impeach the judge…

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3 thoughts on “Constitutional Rights are not a popularity contest”

  1. And if it's questionable to immediately remove judges because of their decisions on the bench, it's even more questionable to disqualify judicial candidates because of their decisions before they reached the bench. My favorite example is when a Republican President nominated a Republican Governor to become Chief Justice of the Supreme Court; you can predict how that would turn out for future Court decisions. Oh, by the way, his name was Earl Warren.

    http://www.delawareonline.com/story/opinion/contributors/2014/05/16/remembering-justice-earl-warrens-surprising-legacy/9176835/

  2. It was a truism for many, many years that a lot of presidents got caught by surprise by the judicial tone of their appointees once they were on the bench.

    The last 2+ decades or so have seen a major change in the US Supreme Court. Governors and Senators were fairly common appointees (even a former President, in one case). While they lacked a judicial record, most were lawyers, and they brought a real-world experience in passing and executing laws that a purely judicial background doesn't provide.

    Today's SCOTUS is all judges — and all of them increasingly vetted to a fare-thee-well by the President's team and by the Senate — so that the "surprises" have turned out to be fewer (and, not coincidentally, the number of references in and the length of opinions has substantially grown).

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