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Extra! Extra! Read All About It! The Court Bucks Majority!

Here’s a letter to the Washington Post, but from it nothing should be inferred about my opinion on abortion or about the quality of the reasoning in, or the conclusion of, Dobbs.


Your headline this morning – “Supreme Court goes against public opinion in rulings on abortion, guns” – says less about the Supreme Court than it does about the poorly informed state of today’s journalists. The very reason for having a judiciary the members of which are not elected but, instead, are appointed to lifetime terms – and whose charge is confined to settling disputes that arise under the law, including that of the Constitution – is to insulate the judiciary from fickle and often-dangerous political passions. According to Alexander Hamilton in Federalist 78, a great benefit of an independent judiciary is that it will protect the Constitution against perils that arise “whenever a momentary inclination happens to lay hold of a majority … incompatible with the provisions in the existing Constitution.”

One may legitimately criticize a court for its particular interpretation of the Constitution. But it’s never legitimate to suggest that a court errs whenever it “goes against public opinion.” As a headline, then, “Supreme Court goes against public opinion” makes no more sense than would the headline “Dog bites man.”

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030


I understand, of course, that justices and judges are human; they often do succumb to majoritarian political pressures. But the design, of course, is for the federal judiciary to be insulated from, and hence resistant to, such pressures.

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