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.
The claim in the book is not that the Court is accountable to the immediate political preferences of the American people - and assuredly not that it should be! Rather, it is that over time, on the issues most salient, the Court's decisions come into line with the "considered judgment" of the American people. Thus, the meaning of the Constitution is forged in a dialogue between the American people and the Supreme Court.
Nor is the claim that things have always been this way. The last third of The Will of the People is an account of the modern era, in which the Court does indeed seem to follow public opinion on issues such as the death penalty, gender equality, abortion, affirmative action and gay rights. But the first two-thirds explain how we came to this odd position in which, on some issues at least, the Supreme Court is the most representative branch of government. The broad claim of the book is that the Supreme Court was never wholly independent of the popular will, and that judicial review as we know it today was shaped as the public responded to the Court's growing power.
More than anything, The Will of the People is an historical narrative. Running from 1776 to 2005 (when William Rehnquist passed away, and the Roberts Court came into being), the book relates how presidents, states-righters, New Dealers, pro-choicers and pro-lifers, farmers and industrialists, and ordinary Americans, all responded to and challenged judicial authority. The book draws on literally thousands of sources to tell stories both familiar and unfamiliar about the vibrant contest between the popular will and judicial review. Among the familiar are: the early fight between Republicans and Federalists that led to the decision in Marbury v. Madision and the Chase impeachment, the aftermath of the disastrous Dred Scott decision, and the New Deal struggle over Franklin Roosevelt's Court-packing plan. But also covered in The Will of the People's pages are events less well-known or understood: the widespread defiance of the Supreme Court by state governments in the early 1800s, the collapse of Reconstruction, the struggle of the Grangers and the Populists with growing industrial power in the Gilded Age.
The questions the book ends with are ones that should concern us all: how accountable is the Court to public opinion? And do we want this sort of accountable Court? Framed against the Japanese internment and the decision in Korematsu, The Will of the People examines the capacity of the Court to stand up to an aroused public in defense of minority and constitutional rights. The Court has some autonomy, though surely not as much as is portrayed, largely because the American people believe in judicial review and judicial independence. But The Will of the People explains that ultimately the fundamental importance of judicial review is in provoking a national dialogue about the meaning of the Constitution - because when the chips are down, constitutional liberty necessarily depends on the shared constitutional understandings of the American people.
And what about the Supreme Court since 2005? The conclusion of The Will of the People talks about this too. It's common of late to note that the Roberts Court is more conservative than the other political branches, and likely the rest of the country. So, are we entering a stage in which the Court will deviate from the popular will? Perhaps. History suggests this is unlikely, however. But if the Court does indeed go its own way, inevitably it will be yanked into line by a superior force: the will of the people.