06/18/2012 06:26 pm ET Updated Aug 18, 2012

The Supreme Court Is Not American Idol

The New York Times reports that "just 44 percent of Americans approve of the job the Supreme Court is doing." May I be permitted an "I told you so?" I have been warning and predicting for years that the Republican/conservative's relentless repetition about "activist, unelected, unaccountable judges thwarting the will of the majority, legislating from the bench and advancing their own agenda" would eventually erode the public's confidence in and respect for the judiciary. Unfortunately, a 44 percent approval rating confirms that prediction. I have no doubt that some of the Court's decisions have contributed to that rating, but I suspect that most likely what has been said about judges rather than what the judges have actually said has caused this loss of faith. Coupled with the harm caused by this mantra of "activism" is the hypocrisy of the claim. The charge appears nowhere in respect to cases like Citizens United, and I guarantee silence will prevail if the Affordable Care Act is declared unconstitutional.

Admittedly some of the loss of confidence and respect is self-inflicted by virtue of specific rulings of the Supreme Court, but I imagine that the same lowering opinion by the public extends to the courts in general. With Congressional approval a notch above used car salesmen, they have been the prime movers in bringing down the reputation of the judiciary. It is difficult to compare the two branches. The fault found with the Judicial Branch lies with what it has done; the fault found with the Legislative Branch lies with what it has failed to do.

To me the greatest danger is the concept that somehow judicial decisions should and must be popular. Taking the country's pulse about matters such as the death penalty, same-sex marriage, etc. is not necessarily inappropriate, but frequently the courts must render rulings that offend the majority but protect minorities. Rulings in favor of convicted criminals may not be popular, but they are necessitated by adherence to the Constitution. And often declaring a statute unconstitutional, and thus "thwarting the will of the majority," is required by the law. Whether or not some choose to label it "activism" invariably depends on whether they like the outcome or not. Fortunately, court decisions do not depend upon a vote of the people as on American Idol. It is the independence of the judiciary which makes it great and entitles it to respect. Criticism of the judiciary is appropriate and necessary, but those who choose to demean and attribute sordid motives to it solely because of their disagreement erode that respect without which the judiciary cannot function.