Barry Friedman


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

Cover Interview of April 03, 2011


The Roberts Court is already under the microscope.  It was chastised by the President for its decision in Citizens United, the case striking down congressional regulation of corporate spending in elections.  The Court is widely seen as extremely pro-corporate America during a populist moment.

In its next Term, the Supreme Court will face some of its largest issues in years.  At the top of the list is “Obamacare.”  Some courts have held that the congressional requirement that the uninsured buy health care violates the Constitution.  Critics have already observed that judges upholding the law were appointed by Democratic presidents; those who have struck it appointed by Republicans.  Then, there is Arizona’s controversial measures to challenge illegal immigrants with aggressive policing.  California’s gay marriage case is also likely to find its way to the Court.

What can we expect out of the Justices?  It is difficult to say.

The claim I make in The Will of the People is not that the Court always follows public opinion.  But that, surely, the Court is influenced by it, and that, in the long run, the Court tends to fall into line.

So if you want to know which way the Court may go, the tea leaves to watch are public opinion on all these issues.

This is a claim about which I am deeply ambivalent—as might you be.  On the one hand, it is troubling that the fate of the Republic on critical issues would be decided by nine unelected and relatively unaccountable people.  On the other, the rule of law seems to compel judicial independence; the Constitution would mean nothing at all if passing majorities always had their way.

Here’s a way to put a face on it all that seems both plausible and attractive.  Perhaps what the Supreme Court does is focus the attention of the American people on the question of what the Constitution should mean.

The American Constitution is well over 200 years old.  You are deluding yourself if you think that our Constitution means today what it meant in 1787, or that the Court so interprets it—or that it could!

One alternative, that the Constitution means whatever a majority of nine people decide it means, is itself not very comforting:  major issues are decided by 5-4 votes.

Yet, IF what really happens is that Supreme Court decisions force us to debate fundamental issues—abortion, presidential power over Guantanamo detainees, etc.—and to come to some long-term social consensus about our most fundamental values; and IF the Court ultimately comes to mirror those values—THEN perhaps this is a plausible story about the role of the Supreme Court in American society.

© 2011 Barry Friedman