Nearly two-thirds of U.S. voters (64%) say U.S. Supreme Court decisions should be based on what is written in the Constitution, but only 35% think PresidentThe opposing idea is that rulings should be decided based on "justice and fairness". When two thirds of Americans think that following the letter of the law is more important than justice, something has really gone wrong. The point of the Constitution--indeed, of all law--is to promote justice. Justice is the objective. Laws are our way of trying to achieve it.
Obama agrees with them.
But there is also something disturbing about conversations on the judiciary in this country, and it boils down to the simple fact that nobody--not the public, not pundits, not even a lot of lawyers, though I just assume they're lying--seems to understand even the most basic facts about our judicial system. There are broadly two types of judicial systems: the first is a civil law system, in which judges determine which lawyer has a better constitutional argument, and that person wins. The end. There's another system called a common law system, in which rulings establish precedents that are, for all intents and purposes, law. Lawyers can cite precedents in a court of law alongside legal texts. This system has some real advantages: it's quicker and more dynamic, though it does give judges a lot of power.
America, of course, uses a common law system. So do 49 of the 50 states. But I bet that, if you described both of these legal systems most Americans would figure we use a civil law system. This is due to conservative arguments over the years about "strict constructionalism" and "originalism", as well as the left's inability to formulate a coherent alternative or point out that these terms tend to be hollow, but that's a discussion for another time. The judiciary has quite a bit of power, but that's the price of the legal system we've chosen. Going the civil law route has some real costs as well, such as its sheer impracticability. It moves slower, and in emerging areas of law there is literally nothing the courts can do.
The poll also notes that most people don't think Obama shares their "what's literally written in the Constitution" metric, but Obama actually was a con law professor so he should be fine. Unfortunately, jurisprudence is a pretty complicated domain that is, sadly, ripe for lots of demagoguery. Let's just say there is much need for education at this point. Hopefully Obama will have a more full discussion on the challenges of making the legal system work in the future.
