This week we learned that the folks over at Rasmussen have conducted yet another embarrassingly-misleading poll, “gauging” the American populace’s opinion of the Supreme Court.   The poll, conducted late last month, asked 1,000 likely voters a familiar question:
Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The problem with this question, of course, is its false assumption that a judicial decision based on a proper interpretation of the Constitution would, by definition, not be fair or just.  We can only assume that in order to come up with a question like this, the folks at Rasmussen must not have read much constitutional text, or history, which in fact make clear that the Constitution – including its 200 years of amendments – is itself largely based on a sense of fairness and justice.

Not surprisingly, a whopping 70% of respondents chose “what’s written in the Constitution,” while a mere 25% selected “a sense of fairness and justice.”  (We’re declaring the 6% who went with “Not sure” the winners here.)  Also unsurprisingly, our friends at NRO’s Bench Memos seized these figures as evidence of widespread rejection of President Obama’s call for judges with empathy.

Setting aside, however, the problem with how this poll was constructed, we have a different take on what these figures could mean.   Interestingly, the difference between responses on this issue is becoming more pronounced.  Back in January, when Rasmussen conducted the same poll, only 64% of respondents chose “what’s written in the Constitution” (27% chose “a sense of fairness and justice”), and when it conducted the poll in June 2008, only 54% of respondents chose “what’s written in the Constitution.”  (37% selected “a judge’s concept of fairness and justice.”)  We think this steady increase in the percentage of respondents selecting “what’s written in the Constitution” is due not to a stealthy success of conservative talking points about “activist” or “empathetic” liberal judges, but to a growing recognition by voters everywhere that the text and history of the Constitution uphold the progressive legal outcomes they prefer.  Perhaps a high-profile Supreme Court confirmation this past summer – featuring a judge who pledged allegiance to the “immutable” words of the Constitution – helped contribute to the latest results.  Or perhaps Americans across the political spectrum are discovering that the text and the history of the Constitution embody a sense of fairness and justice, illustrated, for example, in the document’s guarantees of due process, equal protection, and fundamental individual liberties for “We the People.”

If Rasmussen had elected to word its poll more carefully – and had not given respondents choices that presume, erroneously, that following the Constitution and following a sense of fairness and justice are somehow mutually exclusive – then it might have found stronger evidence of this trend.  Instead, we are left once again with a lousy poll; one with little substantive meaning and that is based on a profound lack of understanding of the text, history, and principles of our Constitution.