Buy My Book - The Will of the People
by Barry Friedman
The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution
Farrar, Straus and Giroux, 2009
For the first time in years, as the Supreme Court winds up its “busy” season – when most of the big decisions come down as the justices scramble to finish their term for the summer and get out of town – the justices are already the center of serious controversy and attention. January’s Citizens United decision brought condemnation from the President, a dust up with the Chief Justice, and relentless attention from the media, the blogs, and members of Congress. Then, to put icing on the cake, Justice Stevens announced his retirement, Elena Kagan drew fire as the President’s nominee as we await the start of yet another summertime confirmation hearing.
What can we expect in the months ahead?
My book ends just as Chief Justice Roberts and Justice Alito took the bench in 2005. Things were quieter then, but predictions from the left were equally dire. So much so, that I began the Conclusion with a prediction of my own: “the long-run of the Roberts Court is not seriously in doubt; its decisions will fall tolerably within the mainstream of public opinion, or the Court will be yanked back into line.” I stand by that prediction, as well as the sentence that followed: “Whether or not this is a good thing – the question typically is obscured by passionate debates over the proper role of judges in a democracy – is far more difficult to say.”
The Will of the People is a history of the relationship between the Supreme Court and popular opinion, from 1776 to 2005. It is written against the claim, prevalent in both academic and popular discourse for over two hundred years, that the justices are impervious to popular control and thus an uncontrollable and anti-democratic force in American democracy. What I show is that ultimately the justices are accountable to the public. Many weapons have been employed throughout history against the Court when its decisions were perceived as threatening or beyond the mainstream. The Court has been “packed;” its jurisdiction stripped, its members threatened with impeachment, their salaries frozen; the justices have been burned in effigy!
As a consequence, the justices understand the limits of their power. Since Franklin Roosevelt lost the battle and won the war in his fight with the Supreme Court, the justices’ opinions in the big cases have tended over time to come into line with popular opinion. Which is why I believe the most likely outcome of this busy June is that the Roberts Court will hold its fire. And that if it doesn’t, and if the public disagrees, some correction will be brought to bear.
How we should feel about this, though, is complicated – and this complications should weigh equally on the political left and right alike. There is another longstanding view of the Supreme Court, one that sees the justices as protectors of minorities and constitutional liberty. Just as my book calls into question the assertion that the Supreme Court is a starkly independent institution, immune from popular control, it also raises doubts whether the justices ordinarily can or do fulfill this heroic mission.
I ultimately conclude that the highest function the Court fulfills is in stirring precisely the sort of controversy we see today. It forces the body politic to decide what it believes is the proper interpretation of the Constitution. The Supreme Court ought not to be a meter registering the latest Gallup Poll. But if the justices’ decisions lead us to debate the proper meaning of the Constitution, and if over time the justices adopt the “considered judgment” of the American people on such questions, then this might just be a function worth having in a democracy.
Barry Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law. He contributes regularly to The New Republic, The New York Times, The American Lawyer, and Forbes.com, among others. The Will of the People is his first book.
