The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.

• Author: Goldstein, Tom
• Position: Book review

THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION. By Barry Friedman. New York: Farrar, Straus and Giroux. 2009. Pp. 614. $35.

INTRODUCTION

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." (1) At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." (2)

Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman (3) would likely reject the Chief Justice's analogy as well, but for a different reason. Friedman might describe Supreme Court Justices as umpires who call the balls and strikes, but whose future calls in constitutional law cases might be influenced by an angry crowd--leading them, for example, to reverse the call of a strike if the fans believed strongly enough that the pitch was low and outside.

Friedman offers The Will of the People as a response to a "persistent complaint about judicial accountability"--that unelected and unaccountable judges wield tremendous power, which thwarts democratic judgments (p. 6). As Friedman relates this complaint, which has famously been described as the "countermajoritarian difficulty," "when the justices base a ruling on the Constitution, the country must live with that decision unless and until the Court reverses itself or the rare constitutional amendment is adopted. There is no overriding the Court otherwise" (p. 5).

Friedman offers an account of the relationship between the Court and the public in which this complaint is unfounded. In his view, it is the public that is in fact calling the game. Rather than thwarting popular will, the Court over time largely aligns itself with public opinion: "[T]hrough the process of judicial responsiveness to public opinion ... the meaning of the Constitution takes shape. The Court rules. The public responds. Over time, sometimes a long period, public opinion jells, and the Court comes into line with the considered views of the American public" (p. 383). Friedman grounds this thesis in a detailed history of judicial review and the Supreme Court, starting with the ratification of the Constitution in 1789 and concluding with the end of the Rehnquist Court in 2005.

Our Review of The Will of the People proceeds in two Parts. The first Part recounts Friedman's thesis in more detail. The second considers whether Friedman's thesis accounts for the decisions of the Roberts Court, including how it might play out in the looming constitutional fights over same-sex marriage, health care reform, and state immigration law.

1. THE WILL OF THE PEOPLE: THE COURT, THE CONSTITUTION, AND PUBLIC OPINION, 1789--2005

   Friedman devotes most of his book to an extensive (and exhaustive) survey of the role of the Supreme Court and judicial review in U.S. history as he sees it. He divides that history into "four critical periods," with each having significant implications for the relationship between the Court and public opinion (p. 12).

   Friedman's first period begins shortly after independence and lasts until the early 1800s. Initially, Friedman relates, "judicial review appeared off to a strong start": although employed relatively rarely, and generally in cases that did not carry "grave consequence[s]," the overall public reaction was one of acceptance (p. 43). To be sure, some members of the public continued to harbor misgivings about judicial review--then, as now, because of concerns about giving power to unelected and unaccountable judges--but judicial review was widely regarded as the only "satisfactory alternative to the problem of unconstitutional legislation" (p. 41).

   The honeymoon period for judicial review quickly ended, however, with the election of 1800, when Republicans captured control of both Congress and the White House, leading Federalists to respond by hijacking the judiciary for largely partisan purposes. As a result, Friedman explains, "the question of judicial review proved secondary to a much more fundamental challenge: whether the judiciary would manage to survive as an independent branch of government" (p. 44). After a series of partisan battles that culminated in the impeachment of Justice Samuel Chase in 1805, relative peace was secured by what Friedman characterizes as a "tacit deal" (p. 45) in which "judicial independence was guaranteed so long as the judges refrained from engaging in blatant partisan politics from the bench" (p. 12).

   With judicial independence secure, the country and the Court moved into Friedman's second period, which would last until the 1830s. During this time, the Court issued "what to this day are acknowledged to be its great nationalizing opinions" (p. 79)--particularly, Martin v. Hunter's Lessee, (4) Gibbons v. Ogden, (5) and McCulloch v. Maryland. (6) However, those decisions-which Friedman describes as "often [running] ahead of existing sentiments for union" (p. 80)--met with resistance from the states, which had begun to chafe at federal control and "[r]epeatedly ... recurred to the argument that there could be no umpire in their disputes with the national government--and certainly not the Supreme Court" (p. 73). Resistance notably took the form of "official[] sanctioned defiance" of the Court's constitutional decisions (p. 12): for example, "Georgia actually hanged a man in the face of a Supreme Court order to the contrary" (p. 12). Disputes over the Court's authority came to a head in the 1832 Nullification Crisis, in which South Carolina enacted an ordinance that not only declared a federal tariff "'null, void, and no law'--and therefore not binding on state officials"--but also forbade any appeal of a challenge to the law to the Supreme Court (p. 99). Friedman largely credits federal officials, and in particular President (and states' rights advocate) Andrew Jackson, with ending the crisis by taking a firm position in support of federal authority; in so doing, Jackson reaffirmed the judiciary's role in resolving federal-state disputes (pp. 101-04).

   With the nullification crisis largely abated, the country entered Friedman's third period, which would begin with the Court's infamous 1857 decision in Dred Scott (7) and continue for nearly a century. As Friedman relates, Dred Scott "set off a firestorm of criticism, wounding the Court as it has not been since" (p. 112). But the response to Dred Scott, Friedman argues, ironically demonstrated the country's commitment to judicial review, as government officials now sought to evade rather than formally defy the Court's ruling.

   In this period, the other branches of government sought to mitigate judicial review by seeking to control the Court "to ensure that disfavored decisions were simply not rendered in the first place or, if rendered, were quickly reversed"--including through such tactics as jurisdiction stripping and court packing (pp. 106-07). During the second half of this era, the Court regained its power by siding with constituencies that could protect it: its decisions dismantling Reconstruction-era legislation garnered "widespread plaudits from an American populace fatigued by the effort to guarantee African-Americans their security, political rights, and some measure of equality," while the Court also "took corporate America under its wing, offering interstate businesses a refuge from the hostile actions of state governments and state courts" (p. 138).

   The 1937 battle over President Franklin D. Roosevelt's court-packing plan both ushered in the modern era and served as one of the cornerstones of Friedman's thesis. After his election in 1932, Roosevelt sought to combat the woes arising from the Great Depression by expanding the government's authority. But "[t]ime and again, Roosevelt found his program stymied by a Supreme Court refusing to interpret the Constitution to cede broad control over the economy either to the federal government or to the states" (p. 195). Moreover, Friedman recounts, the Court's decisions "also ran up against the American people's evolving judgment of what the Constitution meant" (p. 205), with the public now believing that the Constitution "should be construed ... to keep pace with the changing times" (p. 214). Thus, in February 1937 Roosevelt introduced a plan to "reorganize" the federal judiciary by, among other things, adding new Justices to the Court. Roosevelt's plan met with opposition from the public, which Friedman characterizes as "reluctant to see [the Court's] independence tampered with by politics" (p. 236); but in any event, "the Court seemed to switch directions, handing down several dramatic decisions that upheld state and federal economic measures" (pp. 225-26). This "switch in time," combined with the retirement of Justice Willis Van Devanter, led to the demise of Roosevelt's plan. Friedman hypothesizes that "had the Court not capitulated.... Americans might well have approved Roosevelt's plan" (p. 236). Moreover, Friedman contends, "judicial review now was widely valued, but only so long as important judicial decisions did not wander far from the mainstream of American belief about the meaning of the Constitution" (p. 236).

   Friedman focuses next on the Warren Court, beginning with its 1954 decision in Brown v. Board of Education. (8) Here too Friedman describes a "symbiotic relationship between popular opinion and judicial review" (p. 14). He notes, for example, that the Court's first decision in Brown drew praise and encountered relatively little resistance in the South precisely because it "did not actually order anything to be done" (pp. 245-46). When the Court...