Constitution Check: Is the Supreme Court putting new emphasis on majority rights?

Lyle Denniston looks at recent Supreme Court decisions on affirmative action and prayer, and the balance between majority rights and minority rights.

800px-Supreme_Court_US_2010THE STATEMENTS AT ISSUE:

“Freedom does not stop with individual rights. Our constitutional realm embraces, too, the right of citizens to debate so that they can learn and decide and then, in the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure….Freedom embraces the right, even the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the nation and its people.”

Justice Anthony M. Kennedy, in the lead opinion when the Supreme Court on April 22 upheld a ballot measure in Michigan that banned the use of race in selecting entering classes for public colleges in the state. That measure won majority approval in the state, by a 58 to 42 percent margin

“That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing….In their declarations in the trial court, [the challengers to the prayer practice] stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion.”

– Justice Kennedy, in the lead opinion when the Supreme Court on Monday upheld a practice of a town governing board in Greece, N.Y., to open its monthly meetings with prayers led by a “chaplain of the month” selected by the board from local congregations.


America has long been a proud, self-governing nation, with its people endowed with the sovereign authority that their ancestors in Europe always had assumed were the exclusive right of kings and queens – the “royal prerogative.”   Majority rule by the people is a part of that hallowed tradition, and elections are held to let the people express their will.

There is another American tradition: minority individuals, especially those who lack the political clout to control election outcomes, have rights, too, and much of what the Supreme Court has been doing for much of its modern history has been to try to balance the two.

The constitutional pendulum that swings between majority rights and minority rights, when they are not in harmony, does not always move in a smooth arc that represents actual balance.

There have been times, recurring now and then, when some Americans have worried that the pendulum had swung too far toward the minority, and that the Constitution was pushed that way by “unelected judges” – jurists who owed no accountability to the democratic process and majority will.  And there were times, perhaps most notably during the late 19th Century and in the first third of the 20th Century, when some Americans worried that the Constitution was pushed toward the majority – then, too, by unelected, unaccountable judges.

These days, it is not uncommon to hear the political demand to “take back the Constitution.” And there has developed an entire political movement, rising simultaneously with the rise of a new legal advocacy movement, energetically pressing “community values” or “family values” and arguing that those have been sacrificed too often to the growth of a national government – including a court system – that, it is said, exists largely to serve a dependent and grasping citizenry.

Elections have been strongly influenced by this complaint in recent years, and the makeup of Congress and of state legislatures has changed as a result. One part of Congress – the Senate – has often seemed paralyzed by the partisan division. Change has come, too, to the process of citizen democracy through ballot measures: the majority has seized the initiative to determine the outcome of some of America’s most sensitive issues.

This has also reached into the courts, through the judicial nomination process, at the federal and state levels, with the explicit expectation that there is a need to restore some semblance of balance. At the federal level, the Senate Judiciary Committee has become the partisan battleground over the shape of the judiciary.   No new Justice can go from there to the Supreme Court without being fully aware that the law has a distinct political dimension to it.

From time to time these days, it seems clear that a Supreme Court majority reflects the legal side of some of these public sentiments. It has issued rulings on voting rights, on abortion rights, on race relations, and on campaign finance that have marked a new deference to majority will.   It has not grown insensitive to the claims of minorities, but it has displayed a rising trust in the capacity of the majority – particularly, voting majorities – to handle truly sensitive social issues.  There is a decided turn toward a fervent civic faith in democratic preference.

Its recent decisions on affirmative action and on prayers at government meetings were clearly based on that faith. All that civic leaders need from the courts, those two rulings clearly suggested, is a reminder that they must respect the rights of minorities, but that reminder comes with a confident expression of belief that they can be trusted to do so.

As Justice Kennedy wrote in the Michigan affirmative action case, the “First Amendment dynamics” of “public discourse and political debate” would be “disserved if this court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.”

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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