The People's Court

Legal scholar Barry Friedman dissects the public's power over the Supreme Court

by Maria Browning

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution
By Barry Friedman
Farrar, Straus and Giroux
624 pages
$35

Americans across the political spectrum like to complain about the unchecked power of the Supreme Court. Whether it's the religious right lamenting Roe v. Wade or feminists outraged by the Lilly Ledbetter case, the losing side in constitutional disputes is apt to speak of "activist judges" thwarting democracy with decisions that defy public opinion and undermine the authority of Congress and the president. In The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, legal scholar and former Vanderbilt law professor Barry Friedman sets out to show that the court has never been insulated from popular sentiment and in fact has grown increasingly powerful through rulings that promote the kind of society and government the American people want.

Friedman begins the book with a brief account of Franklin Delano Roosevelt's notorious attempt in 1937 to "pack the Court" with additional appointees to dilute the votes of sitting justices who regarded his New Deal policies as unconstitutional. The public was divided on the president's efforts to undermine the independence of the Supreme Court, but largely shared his fury at seeing New Deal legislation struck down. While Congress debated the issue, the court abruptly reversed course with its decisions, and Congress subsequently voted down Roosevelt's proposal. "In effect," writes Friedman, "a tacit deal was reached: The American people would grant the justices their power, so long as the Supreme Court's interpretation of the Constitution did not stray too far from what the majority of the people believed it should be."

As Friedman points out, the struggle over the New Deal is one of many instances in U.S. history when the substance of the Supreme Court's decisions was influenced by politics. The Will of the People meticulously traces the history of judicial review— i.e., the judicial assessment of the constitutionality of legislative and executive action—up to the Rehnquist era, revealing that the Supreme Court has consistently hewed closely to popular opinion. In cases where it has not, the result has been a groundswell of opposition in the political realm, ultimately leading to the appointment of new justices with substantially different views of the Constitution. That's why FDR faced almost no popular opposition as he filled court vacancies after 1937 with justices who radically reinterpreted the Constitution. Friedman describes judicial review as a "dialogic process of 'judicial decision—popular response—judicial re-decision.'" He argues that the long-term impact of the court's rulings is always determined by the public's reaction. "One of the most valuable things that occurs in response to a Supreme Court decision," he says, "is backlash."

In a democracy, according to Friedman, "minority rights are going to come into collision with majority rule, whether there are judges to say so or not." Conflict within a pluralistic society is inevitable, and there will always be fierce criticism of the Supreme Court from those he calls "partisan extremists." The Will of the People, with its richly detailed account of the court's most important decisions, makes a compelling case that, however vigorous the protests, judicial review has generally served prevailing public sentiment, though not always the public good. In the long run, Americans get the rulings they want and deserve. As Friedman says, "Ultimately, it is the people (and the people alone) who must decide what the Constitution means."

Published Thursday, 21 January 2010