By Barry Friedman, Vice Dean & Jacob D. Fuchsberg Professor of Law, New York University School of Law
Here's a puzzle: Since 1968, when Richard Nixon was elected President vowing to place "strict constructionists" on the Supreme Court, Republican presidents have appointed 13 justices and Democratic presidents have appointed three. The last three chief justices have been Republican appointees. Given these numbers, why is it that the Republicans have been unable to see their positions become constitutional law on issues such as affirmative action, abortion and gay rights?
The answer? Public opinion. In my book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution; I explain how, since at least 1937, the Supreme Court's decisions have, over time, mirrored the views of the American people.
The Will of the People challenges the assumption, held by opponents and defenders of judicial power alike, that the Supreme Court is aloof from ordinary politics and the popular will. Those who oppose judicial power regularly argue we are victims of judicial supremacy, that the unaccountable Court imposes its views on the rest of us. Those who see a role for judicial review in protecting minority and constitutional rights believe the Supreme Court is able to do so in the face of contrary popular opinion. I challenge both of these views.