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Slow walk toward reality
on February 16, 2015
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. Of the 19th century Progressive Era, Friedman acknowledges that the Court struck down many laws but nevertheless exhorts the reader not to attribute “the rise of the court’s authority to unthinking acquiescence”; rather, “it is better understood in terms of constituency [building]” in which the Court “catered to the needs of those who had power over it” (139).
I have literally no idea what that means. As an initial matter, why SHOULDN’T we think of it as public “acquiescence”? It’s not as if “public acquiescence” and “constituency building” are mutually exclusive. Social reformers passed laws. The Supreme Court struck them down. Any public “tailoring” of the Court seems to have been in short supply here as the Court didn’t stop striking down laws. I don’t see how viewing the era through the lens of “constituency building” helps us see public opinion as some kind of barrier to judicial activism.
I think what Friedman was trying to do in this chapter was argue that the Court, fearing public backlash, built a constituency with someone who could protect it from angry public opinion. In this way, the reader won’t see the public as just lumps on a log, doing nothing. (As the subtitle tells us, public opinion has to “influence” and “shape” the Constitution.) Unfortunately, the pieces don’t align. Friedman identifies large corporations as having “power over the Court”; however, corporate-backed laws weren’t the ones getting gutted during the Lochner Era. Progressive, populist legislation was. So, in the end, “public opinion” didn’t seem to “influence” the Court in the least.
Moving onto the New Deal era, Friedman accepts the conventional view that the Court feared it would lose its “legitimacy” if it continued to strike down FDR’s programs so it therefore stopped. Maybe. Obviously, I have no idea what the Justices were thinking. Unfortunately, discussions of legitimacy tend to be “subjective”; i.e., they speculate what was happening in the minds of the Justices. But there is little objective evidence that the Court’s authority had waned. After all, FDR’s threat to pack the Court carried with it the implicit concession that he would continue to follow the Court’s decisions. (Otherwise, why pack the Court?) I can’t think of a better definition of “legitimacy” than having the co-ordinate branches of government obey your decisions even when they don’t like them.
Maybe had the Supreme Court, after 1937, simply decided cases in accord with “public opinion” then Friedman’s argument might have held water. Had that happened, we could say that the public had figured out “what it wanted” from the Supreme Court and that the public had “tailored” the Court to fit its needs. Except that didn’t happen. Fast on the heels of the Lochner Era was another great activist Court, the Warren Court, which pushed for desegregation, rewrote criminal law, advanced sexual autonomy, etc. Friedman opens his discussion of the Warren Court by baldly (balls-ily?) claiming that “the public supported these outcomes” (236).
And then we get the rest of the chapter: Brown v. Board of Education inspired massive resistance; 70% of the public disapproved of the school prayer decisions; reapportionment decisions--which “the public loved” (267)--were supported (according to a footnote) by only a plurality of Gallup respondents; criminal defense decisions (“entirely favorable”) inspired protests from police; and about two-thirds of the public came to reject Miranda. That’s…not terribly convincing evidence that the public “supported these outcomes.”
Did “public opinion” maybe begin to “influence” later Courts to overturn these decisions? Not really. The public continued to oppose the school prayer decisions but the Court upheld them anyway. The Court also upheld Miranda. Friedman tries to explain all of this away, bit by bit, but the impression he gives is that the Court feels free to ignore the public unless the public is engaged in massive armed resistance against the government. That doesn’t sound like public opinion is “influencing,” “tailoring,” or “sculpting” anything. That sounds like a “people’s veto,” which can only be expressed with violence.
Only when Friedman enters the 21st century does he begin to slow walk his way to reality. He intelligently notes that many of the Court’s decisions outraged political partisans but that what angered political partisans did not necessarily enrage the public. As long as the Court “ran in the range of popular opinion,” i.e., “never far from the mainstream” (364), then the public accepted its decisions.
What really is the purpose of this book? To argue that the public “has come to accept” the Court’s decision is certainly a true description of the current state of affairs. But description isn’t justification. After all, if the Court’s decisions tend to “find support in the latest Gallup poll,” then why do we need judicial review in the first place? Why not just let the political process play out? The political process likewise produces results "in the range of public opinion."
All Friedman’s book has shown us is that the fundamental norms of the American public are sufficiently elastic to accommodate a range of policy positions, even when those positions don’t command the support of 50.1% of the public. Public stability isn’t threatened when the government limits the number of hours a baker can work. It’s also not threatened when the Court says the government can’t limit the number of hours a baker can work. It’s not threatened when a prayer is offered in school. And it’s not threatened when the Court says prayer can’t be offered in school. It’s not threatened when the Court tells us we can’t criminalize partial-birth abortion. And it’s not threatened seven years later when the Court says we can criminalize partial-birth abortion.
Which means, in the end, that everything we need constitutionalism for—stability and a framework for adjudicating individual rights—is provided by the democratic process itself. To say that Judicial Review isn’t “anti-democratic,” then, is essentially to say that it’s redundant and unnecessary.