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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
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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.)
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“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
Top customer reviews
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.
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.