The U.S. has a big problem. A legal problem. Its Supreme Court is undermining its democracy.

The court has recently made a series of rulings that conflict with the views of most Americans. These include removing abortion from constitutional protection, enhancing gun rights, reducing separation of church and state, and weakening efforts against global warming.

Justices are, of course, not politicians. Their job is to interpret the law, not to make popular decisions. And there are times when courts should interpret a constitution in the interests of a minority. Indeed that’s one of the main reasons for a constitution—to protect the rights of individuals and minorities. But that means an identifiable minority—racial, gendered or philosophical—not an opinion minority. There is a minority of opinion on every issue.

In a democracy, courts should not stray too far from public opinion. The U.S. Supreme Court is disagreeing with the majority of Americans on so many issues it seems to be disagreeing with democracy itself. Perhaps this shouldn’t be surprising. After all, the conservative majority were appointed largely by presidents who had taken office without winning the popular vote.

The conservative justices claim to be originalists, that is they simply interpret the constitution the way the founding fathers intended. This is problematic. The document was written 250 years ago in a very different world. Even many words no longer mean today what they meant then.

Circumstances are extremely different. For example, consider gun rights. At the end of the 18th century guns were muskets which took forever to load just to get one shot off. Today they include handguns and rifles that can fire multiple shots per minute. Would the founding fathers have the same intention if they could have even imagined such weapons? Attempting to read the minds of men from 250 years ago involves no little guesswork.

But aside from such second-guessing, would the founding fathers of the United States want their intentions rigidly adhered to even if they could be accurately interpreted? They were the progressives of their day. They believed that all people (with some unfortunate exceptions) had the right to decide on their governance, a radical idea for the time. All had such a right, not just them, not just their generation. Such men would expect future generations to make their own decisions, just as they did. What would freedom mean if future generations were bound by the notions of their forefathers even if their circumstances greatly differed?

By imposing their personal interpretations of the founding fathers intentions, the Supreme justices are betraying the very spirit of the men they claim to honour. Perhaps as conservatives they have trouble penetrating the minds of progressives, past and present.

The court’s assault on democracy will not be short-lived. U.S. Supreme Court justices are appointed for life and the conservative judges are a relatively young group. American democracy is sufficiently troubled without its supposedly neutral branch of government making mischief. The court, as with a number of other U.S. institutions of governance, is in desperate need of an overhaul (meat for another post).