This week, Matthew Franck, writing at Bench Memos (the legal blog of the National Review) put a predictable conservative spin on results from a recent Rasmussen poll, which asked 1,000 adults the following 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?
Reveling in the indication that “nearly two-thirds of Americans say the sensible thing” (i.e. 64% of respondents chose “what’s written in the Constitution”), Franck nevertheless decries the fact that “more than a quarter of respondents, [27%,] have so little understanding of what the Court’s job is that they think ‘a sense of fairness and justice’ should guide the judges.” He also points out that 35% of respondents thought President Obama wants the Supreme Court to follow what’s written in the Constitution, 38% thought he wants the Court to be guided by “a sense of fairness and justice,” and 27% weren’t sure what he wants, to which Franck concludes:
[A] lot of Americans appear to distrust or suspect the president where the Court and the Constitution are concerned—and rightly so, I’d say.
There are quite a few things wrong with Franck’s post (the comment about “waterboarding” liberal law professors comes to mind) but the first and foremost is the Rasmussen poll itself.

Rasmussen predicated its main question on a false choice: the idea that “what’s written in the Constitution” and “a sense of fairness and justice” are somehow mutually exclusive. One need look no further than the first sentence of the Constitution, which lists “establish[ing] justice” and “promot[ing] the general welfare” as two of the five reasons for “ordain[ing] and establish[ing] this Constitution for the United States of America,” for a refutation of this premise. This is precisely why the expression “equal justice under law” is engraved in marble on the front of the U.S. Supreme Court building: judges agree to promote fairness and justice when they swear their oath of allegiance to the U.S. Constitution.

The Rasmussen poll and Franck’s piece are designed to suggest a wedge between the results progressives seek from the Supreme Court (including equal justice and fairness) and the commands of the Constitution. They thus fit right into the much-loved (though easily debunked) conservative claim that progressives want activist judges who consult their feelings and their politics, and possibly their horoscopes, when making rulings. The problem is that, too often, progressives fall into the conservative trap and fail to link the results we seek from judges to the Constitutional text and history that supports those outcomes.

Better polling done last fall for Constitutional Accountability Center (CAC) by the Mellman Group illustrates the problem and points to the solution. Using national, split sample polling, Mellman compared language used by both presidential candidates in last year’s election on this issue of judging, as well as CAC’s alternative message that judges should faithfully uphold the text, history, and principles of the Constitution, including all its Amendments. The results revealed dramatic swings in public opinion toward the progressive position when the outcomes progressives seek were placed in a constitutional frame. For example, Mellman tested traditional conservative rhetoric surrounding “original meaning” against traditional liberal messaging that the Constitution must be interpreted in light of “changing times and current realities.” In this match up, unsurprisingly, Americans favored the conservative position by 12 percent. However, when the progressive idea of a “living constitution” was reframed with reference to “Amendments that have been made over the past 220 years,” the progressive position beat conservative “original meaning” rhetoric by 24 percent. This represents a whopping 36 percent swing in national public opinion toward the progressive position. In summarizing these results, Mellman stated:
Across the political spectrum and with nearly all key demographic groups, the American electorate responds powerfully to the invocation of Constitutional text, history, and principles. In questions on judicial nominations, the role of the judiciary, and Supreme Court interpretation, progressive arguments framed in the Constitution are preferred over both traditional progressive and conservative argumentation, providing progressive advocates with powerful language to combat conservative rhetoric. In short, progressives would reach a broader range of the American public by rooting arguments about judicial results in the Constitution’s text, history, and principles.
The Mellman poll thus confirms that Americans want judges who will be faithful to the Constitution, but who will not, as Franck does, draw a false distinction between “the Constitution” and “a sense of fairness and justice.”