Barry Friedman

In a nutshell

Most people who think about it, no doubt, consider the US Supreme Court to be the protector of minority and constitutional rights against majority oppression.

But is that right?

In The Will of the People I argue that, on the major issues, over time, the Justices tend to come into line with popular opinion.

At its core The Will of the People is a historical narrative of the relationship between public opinion and Supreme Court decisions. It tells this story from Independence to 2005, when Chief Justice Rehnquist dies. Covered along the way are major cases and events like the full story of Marbury v. Madison (the Supreme Court’s most misunderstood case), the Civil War and Reconstruction, the Civil Rights Movement, the Bork nomination, Roe v. Wade, Bush v. Gore, and the fight over affirmation action.

The meat of the book is not the telling of these stories, though each is interesting. I have painstakingly researched how the public reacted to them, and how those reactions influenced the Justices on the Supreme Court.

Is it good for the Supreme Court to be responsive to the popular will? This is hardly what the Framers imagined. I leave my answer to readers of the book.

The wide angle

Throughout history there has been one main claim leveled at the Supreme Court: that when it strikes down laws on the basis of the Constitution, it is interfering with democracy. This is the main academic claim to which I respond.

The very same claim can be heard in the political arena—all the time. Lincoln said it about Dred Scott, holding Congress powerless to do anything about slavery. Franklin Roosevelt said it about the many decisions striking down New Deal measures.

Indeed, this is the claim you can expect to hear if the current Supreme Court, headed by Chief Justice John Roberts, were to strike down the new health care law.

But the claim is ironic. Think about it. It is exactly parallel to the claim that the Supreme Court should protect minorities, or unpopular rights. When the Court does this, it often is interfering with the will of the majority.

In truth, people typically love—or hate—the Supreme Court, not based on whether it is “anti-majoritarian,” but based on whether they agree or disagree with what the Court is doing.

In The Will of the People I argue that, most often, the “anti-majoritarian” rhetoric is just plain wrong.

The Court doesn’t always follow popular opinion—nor should it. But in the most contentious issues in society, be it the death penalty, civil rights, the power of the national government, gay marriage, or much else, the Justices eventually come into line with popular opinion.

The real puzzle is why.

I have two main arguments. First, the Justices live in the same world as the rest of us, and are influenced by the same cultural and political phenomena. Second, the Justices have no choice.

We think of the Justices as independent. They hold offices for life, can’t be fired, can’t have their salaries diminished.

But in this book I show that plenty of bad things have happened to the Court. The Court has been “packed” to change outcomes. It has had its jurisdiction to hear cases stripped. One Justice was impeached. The Justices have had their salaries frozen. They have been hung in effigy...

The Justices know all this—and they are careful to make sure that for the most part they stay on the good side of public opinion.

A close-up

It is 1867. The Civil War is over, but the Union is struggling to bring the Confederate States back in. A procedure has been announced that requires ratifying the 14th Amendment. Some Confederates are fighting the process every way they can, boycotting elections, bringing court battles. They are hoping if they can stave off ratification until the 1868 elections, the tide will turn in their favor. The Confederates argue military rule of the South is unconstitutional, and must cease. The Supreme Court has ducked a number of attempts to bring the issue to it.

Then, Union troops take into custody an unreconstructed newspaper editor named William McCardle who is writing scurrilous editorials and publishing the names of southern citizens that vote in Union elections. McCardle sues for his freedom (and keeps the litigation going even after released on bail) arguing martial law violates his rights.

Congress is petrified the Supreme Court will take the case and strike down the whole congressional Reconstruction plan. No way Congress will allow this after all the Union blood spilled. Indeed, at the very same time, Congress is trying the impeachment of President Andrew Johnson, basically accusing him of disloyalty. So Congress takes action: it strips the Court’s jurisdiction to hear McCardle’s case, all the while pretending it is not doing much.

What will the Court do in the face of this threat to power? Stand idly by, to be, as one member of Congress put it, ravished without a cry?

(Hint: the Court knows a superior force when it encounters one!)

Lastly

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.