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The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution Hardcover – September 29, 2009

4.2 out of 5 stars 6 customer reviews

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Editorial Reviews

From Publishers Weekly

Rather than a cloistered priesthood interpreting a sacred text, the Supreme Court is a canny group of political operators, argues this fascinating revisionist constitutional history. NYU law prof Friedman lucidly chronicles the Court's fraught relationship with presidents, Congress and the states, who have defied, threatened and rejiggered the Court when its rulings offended them. The Court has nonetheless made itself felt, Friedman argues, by cultivating powerful constituencies and aligning with prevailing winds: it became the handmaiden of Progressive-era industrialists and now reliably (and for the good, Friedman thinks) locates the moderate consensus on vexed issues like abortion and gay rights. Friedman offers a fresh, dynamic rethinking of the role of the Constitution and the Court that puts democratic politics at the center of the story. (Oct.)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.


Praise for The Will of the People

“Friedman’s book admirably manages to distill more than two hundred years of constitutional history into a coherent narrative that attends both to continuity and to change. And a distressingly small number of legal academics can match his lucidity or his ability to turn a phrase.” —Justin Driver, The New Republic

“[A] thought-provoking and authoritative history . . . Friedman’s contribution to this discussion is the breadth and detail of his historical canvas, and it’s a significant one.” —Emily Bazelon, The New York Times Book Review 

“Serious and academic in tone, this book tackles a complex subject.” —Becky Kennedy, Library Journal

“Friedman offers a fresh, dynamic rethinking of the role of the Constitution and the Court that puts democratic politics at the center of the story.” —Publishers Weekly

“We think of the Supreme Court’s constitutional decisions as lofty, lonely, unchallengeable. But in truth they are part of a dialogue with public opinion and political leadership—and in the long run the Court does not stray far from the public. That is the convincing conclusion of Barry Friedman’s stunning, fascinating history.” —Anthony Lewis, author of Gideon’s Trumpet

“Deeply informed by history and political science, The Will of the People offers a fresh and insightful look at the most profound problem in American constitutional thought: how and whether the Supreme Court may thwart the will of a democratic majority. With elegance, clarity, and patience, Friedman tells the story of how the Court has gauged public opinion: now giving in to its power, now shaping it, and even occasionally standing up to it. No one who cares about the development of the Supreme Court—or the Constitution—should miss this book.” —Noah Feldman, Bemis Professor of Law, Harvard Law School, and author of Divided by God and After Jihad

“In this beautifully written and extensively researched study, Barry Friedman explodes the common myth that the Supreme Court regularly thwarts the will of national majorities. The next time you hear a politician or pundit blather on about an out-of-control judiciary, tell them to stop pontificating until they have read this remarkable book.” —Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

“Since its inception, the United States Supreme Court has had to walk the delicate line between a respect for majority will and a protection of minority rights. Barry Friedman gathers wide-ranging evidence, much from surprising sources, to support the proposition that the court rarely strays too far from public opinion in the exercise of the power of judicial review, and we are better for it. All readers will profit mightily from this learned book, whether or not they buy into Friedman’s arresting thesis.” —Richard Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and Visiting Professor at New York University


Product Details

  • Hardcover: 624 pages
  • Publisher: Farrar, Straus and Giroux; First Edition edition (September 29, 2009)
  • Language: English
  • ISBN-10: 0374220344
  • ISBN-13: 978-0374220341
  • Product Dimensions: 6.5 x 1.9 x 9.3 inches
  • Shipping Weight: 1.6 pounds
  • Average Customer Review: 4.2 out of 5 stars  See all reviews (6 customer reviews)
  • Amazon Best Sellers Rank: #1,312,350 in Books (See Top 100 in Books)

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More About the Author

Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. He has taught, written and litigated about the Constitution for twenty-five years.

Throughout his career, Friedman has had one foot in the academy and one foot in the world of law and legal practice. Following a clerkship with Judge Phyllis Kravitch on the Eleventh Circuit, Friedman taught for a year at the University of Alabama, where he also engaged in death penalty and prisoner litigation. He then moved to practice at Davis, Polk & Wardwell in Washington, DC, while teaching as an adjunct at Georgetown University Law Center. In 1986, Friedman joined the faculty of Vanderbilt University School of Law, where he taught until moving to New York in 1999. Between 2007 and 2010 Friedman served as the Vice Dean of New York University School of Law. In the last twenty years, Friedman has represented pro bono and private clients at every level of the state and federal courts. His cases have dealt with abortion rights, free speech, interstate commerce and state authority

Friedman is one of the country's leading authorities on the federal courts and judicial behavior. His work is interdisciplinary, grounded in law, political science and history. He has published over fifty academic articles in some of the country's leading journals. Along with Professor Steven Burbank he co-edited Judicial Independence: An Interdisciplinary Approach. He also contributes regularly to the mainstream media, with articles or opinion pieces in The New Republic, The New York Times, The American Lawyer, and Forbes.com, among others. The Will of the People is his first book.

Friedman has energetically devoted himself to the public interest. He was the affiliate president of the American Civil Liberties Union of Tennessee, and on the board of the State and Local Legal Center; he also served on the board and executive committee of the American Judicature Society for many years. He presently is co-director of the Furman Academic Scholars program, which prepares students for a career in the legal academy.

Friedman lives in Greenwich Village, with his wife Jill Anton - a food stylist - and his two children Samara and Simon.

Customer Reviews

Top Customer Reviews

Format: Hardcover Verified Purchase
Because U.S. Supreme Court justices have effective life tenure under the federal Constitution, the high court has long been viewed as a undemocratic institution in our society. The "countermajoritarian" nature of the Court has been a cause both for censure and celebration. On the one hand, the Court has been faulted for sitting as a "superlegislature," in which five (out of nine) middle-aged to elderly judges can strike down the enactments of democratically elected bodies. On the other hand, a counter-majoritarian Court has been seen as a bulwark for fundamental liberties or powerless minorities whose status should not be determined by a popular vote.

Friedman's book renovates this well-rehearsed debate by challenging its core premise. Taking a broad yet detailed historical perspective, he observes that the Supreme Court is rarely out of sync with popular opinion. Under this view, both the demerits and the merits of judicial review will be dampened. The Court is not as susceptible to the charge that it is an activist institution out of touch with the polity. At the same time, it is also not as worthy of praise as an institution that can protect rights and groups from majority whims.

The book is a fascinating sociological study of the Court. It is also an important theoretical work that shows how unelected officials are held indirectly accountable to the people. Most of all, it is a call to reflect and act that is all the more effective for not coming to us as a polemic. This book argues that what we as individual citizens believe, say, and do affects the meaning of the Constitution. It addresses us all, which is why we all should read it.
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Format: Hardcover Verified Purchase
Barry Friedman brings happy news: the anti-democratic nature of judicial review is “radically overstated” (9) because the Court’s “decisions tend to converge with the considered judgment of the American people” (14). In fact, the American people have “tailored” (9) the Court to suit its needs as it has “come to understand what it wanted” from the Court (11). Consequently, the Court’s opinions tend to “find support in the latest Gallup poll” (14).

Anyone reading this will have one response: Lochner. What about the Lochner Era, when the Court mowed down dozens of laws? Friedman actually begins the book at the tail end of the Lochner Era, in 1937, with FDR having just asked Congress to allow him to pack the Court with new Justices. Of course, starting in 1937 tends to foreshorten the Lochner Era so that it seems like a mere personal dispute between FDR and the Supreme Court, when, in fact, Lochner Era activism stretched from 1897 (or even 1887) all the way to 1937. In other words, for fifty years (yes, HALF A CENTURY!) the Supreme Court shot down democratically passed laws—you know, the kind of laws that represent “the considered judgment of the American people.” Yet the Court didn’t care. Boom. Boom.



Boom. Down they went.

How does Friedman explain away the Lochner Era? How does he show that the Court was ultimately responsive to public opinion?
Not very convincingly, I must say. He breaks the Lochner Era up into two parts, the better to tackle the job.
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Format: Paperback Verified Purchase
Awesome book! Great companion book for any criminal justice student
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