The Supreme Court rulings represent the tyranny of the minority
"...the Supreme Court has no obligation to follow the popular will. It is charged with safeguarding the Constitution. But it is hard for any disinterested observer to have any faith in what the right-wing justices are doing. They are not acting very conservatively in overturning an abortion ruling (Roe v. Wade) that is 49 years old and a New York state gun-control statute that is 109 years old. In both cases, the justices rely on dubious readings of legal history that have been challenged by many scholars to overturn what had been settled law.
Conservatives can plausibly argue that liberal justices invented a constitutional right to abortion, but how is that different from what conservative justices have done in inventing an individual right to carry guns that is also nowhere to be found in the Constitution? The Supreme Court did not recognize an individual right to bear arms until 2008 — 217 years after the Second Amendment was enacted expressly to protect “well-regulated” state militia.
The Second Amendment hasn’t changed over the centuries, but the composition of the court has. The majority conveniently favors state’s rights on abortion but not on guns. It is obvious that the conservative justices (who are presumably antiabortion rights and pro-gun rights) are simply enacting their personal preferences, just as liberal justices (who are presumably pro-choice and pro-gun control) do.
So, if the Supreme Court is going to be a forum for legislating, shouldn’t it respect the views of two-thirds of the country? But our perverse political system has allowed a militant, right-wing minority to hijack the law.
As an Economist correspondent points out, “5 of the 6 conservative Supreme Court justices were appointed by a Republican Senate majority that won fewer votes than the Democrats” and “3 of the 6 were nominated by a president who also won a minority of the popular vote.”
Public faith in the Supreme Court is down to a historic low of 25 percent, and there’s a good reason why it keeps eroding. We are experiencing what the Founders feared: a crisis of governmental legitimacy brought about by minoritarian tyranny.
And it could soon get a whole lot worse. In his concurring opinion in the abortion case, Justice Clarence Thomas called on the court to overturn popular precedents upholding a right to contraception, same-sex relationships and marriage equality.
So much for Hamilton’s hope that “the sense of the majority should prevail.”