This tension is certainly seen in the manner in which popular commentators write and speak about the U.S. Supreme Court.
People have criticized the USSC continuously over its more than two centuries of existence. But current criticism, both of the composition of the court and its institutional structure, differs from criticism of some previous eras. Current criticism is radical in nature, calling for either complete restructuring of the judiciary, or for its complete destruction. Current criticism is motivated by sentiment rather than by judicial reasoning, by waves of emotion rolling through society rather than by textual analysis.
Whether such commentators are praising or condemning a recent USSC decision, they flip readily back and forth between two opposing approaches: on the one side, demands for principled adherence to constitutional procedure; on the other side, pressure for the Court to conform to some alleged Zeitgeist, “arc of history,” or popular moral sentiment in the style of Rousseau’s General Will. Inconsistencies abound.
It is possible, however, to discern a heartening pattern of steady legal scholarship in the Court, as historian Jonathan Turley writes:
Regardless of the charges hurled against the Supreme Court by both the Right and the Left, what critics call partisanship is actually deep and good-faith jurisprudential differences on both ends of the Court. This was also the case when, for a period of many decades, the Court had a liberal majority.
Likewise, a media sphere of hyperpolitical and hyperpoliticized commentators project their own status onto the Court, claiming that it is divided, partisan, and politicized. This accusation ignores the collegiality and mutual respect among the justices and ignores the broad swaths of agreement and unanimity among the nine justices.
The reader will be aware of the friendship between Antonin Scalia and Ruth Bader Ginsburg.
The allegations of partisanship collapse under the weight of evidence. The justices who are allegedly “right-wing” or “pro-Trump” have often voted with their other colleagues against some Trump-backed measure. The justices who are allegedly “left-wing” or “anti-Trump” have often voted for some Trump-backed measure.
There are not two monolithic binary voting blocks within the court, as Jonathan Turley notes:
The attack on the Court as partisan is entirely disconnected from its actual voting record. It is a too-little-known fact that 44 percent of cases that come before the Supreme Court are decided unanimously. When you include nearly unanimous cases — those decided by 8–1 and 7–2 margins — that figure jumps to over 60 percent. It is also common for liberal and conservative justices to vote with colleagues on the opposite end of the ideological spectrum. In a case this year, for example, conservative Justices Thomas, Alito, and Kavanaugh joined liberal Justices Sotomayor and Jackson in the majority decision, while liberal Justice Kagan joined Chief Justice Roberts and Justice Barrett in the dissent.
Among the bits of primary-source evidence are statements by the justices themselves, as Jonathan Turley records:
Liberal justices from Stephen Breyer to Elena Kagan have refuted claims that today’s Court is a partisan institution.
The Court in 2026 is sometimes accused of being pro-Trump. Josh Gerstein echoe what the justices themselves have said about the matter:
Supreme Court Justice Elena Kagan is rejecting claims that the high court’s conservative majority is in President Donald Trump’s corner.“I don't see this as a court that is just like, ‘We're just going to rubber stamp what the current administration does.’ You know, quite the opposite,” Kagan said to a judicial conference here Thursday. “I think that that is a bad rap.”
Kagan pointed to a series of Supreme Court decisions over the past year that have bitterly disappointed Trump
Commentators, legislators, and the staff of the executive branch have this in common: they are inclined to see the judicial branch in general, and the Supreme Court in particular, as an obstacle to be overcome. That is, in part, true, and it is, in part, by design.
The separation of powers, and the mechanisms of checks and balances, were designed to slow down governmental process, in order to avoid hasty actions. The structures of the Constitution are designed to prevent the runaway absolute imposition of any ideology, as Jonathan Turley explains:
For those on both ends of the political spectrum, judicial restraints on their favored policies can be frustrating or even infuriating.
It is worth noting the difference between “majoritarianism” and “majority rule” in the context of the USSC, and especially in light of Senator Warren’s demand that the Court bow to “widely held public opinion.”
Majority rule is a decision-making mechanism or procedural rule where an option, bill, or candidate wins if they receive more than half (>50%) of the votes cast. It is a standard tool of democratic governance and parliamentary procedure (such as Robert's Rules of Order) used to settle specific questions or elect representatives. Majority rule is a method of counting preferences, not an all-encompassing political ideology. A system can use majority rule for individual votes while still maintaining constitutional checks, bills of rights, and protections for minorities.
By contrast, majoritarianism espouses the hegemonic absolute rule of a numerically greater number.
Majoritarianism is a broader political philosophy or system which asserts that the numerical majority of a population (or a dominant ethnic, religious, or linguistic group) should hold primacy and unchecked decision-making power in society. It treats the majority's will as supreme, often seeking to minimize or eliminate institutional barriers — such as judicial review, supermajorities, or minority vetoes — that restrict what the majority can do. Majoritarianism is an ideology. Critics frequently describe extreme forms of majoritarianism as the “tyranny of the majority” or ochlocracy (mob rule), because it can run roughshod over individual liberties and minority rights.
The reader will note the affinity between majoritarianism and populism.
Jonathan Turley continues:
Those restraints often represent a firewall for natural rights.Consider the attacks on free speech that came to a head during the Biden administration.
Senator Elizabeth Warren argued that the USSC has a duty to follow “widely held public opinion.” In her view, the Court must submit to any proposition which most citizens endorse. Warren’s view would erase the significance of positive law, including ironically the legislation which she herself has produced. Warren’s view would make the USSC, and eventually all of society, subservient to the changing passions of the mob, and to the agendas of those who are proficient at manipulating the mob.
At times, it is indeed the task of the USSC to adjudicate in harmony with “widely held public opinion,” but the harmony is coincidental. The Court sometimes rules in agreement with the public only because higher constitutional principles happen to congrue with a popular view.
At other times, it is the task of the Court to flatly oppose “widely held public opinion.” It does so not because it wishes to oppose the public, but because higher principles require it to do so.
Free speech cases are often paradigmatic, because the First Amendment’s protection of speech is often understood to be limited only by the clearest and most significant potential dangers or damages.
Jonathan Turley narrates one particular case:
Free speech as guaranteed in the First Amendment has been understood throughout our history, almost universally among Americans, as a bedrock principle essential to all our rights. Yet there was an aggressive campaign between 2020 and 2024 to curtail free speech on the Internet and elsewhere by labeling it “disinformation,” “misinformation,” “malinformation,” or “hate speech.” Those standing in defense of free speech were dismissed, in the words of one law professor’s book, as members of a “cult of the Constitution.” This campaign followed a trend in Europe, where speech is increasingly criminalized. But European laws never understood free speech as a natural right, and Europe’s courts have never aggressively protected it.Here in the U.S., on the other hand, one of the greatest triumphs for free speech came in the Supreme Court’s 2023 decision in 303 Creative LLC v. Elenis, which held that Lorie Smith, a Christian website designer, could refuse to provide services for a same-sex marriage. Justice Gorsuch, writing for the majority, argued that “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ ... They did so because they saw the freedom of speech ‘both as an end and as a means’ ... an end because the freedom to think and speak is among our inalienable human rights.”
Had 303 Creative been decided in a different way, states and cities could compel or curtail speech according to whatever their leaders viewed as discriminatory elements under public accommodations laws. Instead, the Court adopted a bright-line rule that business owners could decline to create expressive products from cakes to websites. The counter-majoritarian function of the Court worked in the 303 Creative decision to protect natural rights. Regardless of whether it reflected the will of the Colorado majority, it upheld the right of free speech.
Natural law opposes majoritarianism because it urges that the sovereignty of the majority end when it transgresses against the human rights of the minority: majority rule allows the majority to legislate up to, but not beyond, the point of such transgression of human rights.
Blind rage is precisely that: blind. Rage rejects rationality. In the post-modern age of rage, which might be roughly characterized as the late twentieth and early twenty-first centuries, passion and emotion are privileged.
The constitutional judicial system in the United States, and indeed justice itself, is founded on what might be described as an Enlightenment view of human nature in the context of government and politics: man is a rational, knowing, deliberative agent. To be sure, human beings have powerful passions and emotions, but feeling and sentiment are to be muted in the process of legal reasoning.
Rage — uncontrolled anger — is destructive. Controlled anger lends itself to reasoned plans of action, which are ultimately more effective than rage’s blind destructiveness, as Jonathan Turley writes:
We are living in a time of rage. It is not the first such time in our country. Indeed, America was born in rage. It was rage that fueled the Boston Tea Party. It was righteous rage, but rage all the same. It is especially during such periods that the judiciary must stand in defense of our individual natural rights. It is also especially during such times that we must stand as a people to prevent extremists of any ideological bent from politicizing or destroying our constitutional judicial system.
The temptation — from both the right and the left — to attack the constitutional structure of the judicial branch in general, and to attack the institution of the Supreme Court in particular, must be resisted if a free society is to survive. There is already a mechanism for adjusting the USSC: the president will nominate, and the Senate will approve or not, future justices. Voters and citizens can shape the Court through their choice of candidates.
Attacking the judicial system is a short-sighted tactic. Those who employ it seem unaware that this same tactic will inevitably be redirected against them and against whichever goals they hope to realize.
