SOURCE: Special to HNN ()
The second narrative is captured by the fictional Mr. Dooley’s 1900 observation that the “supreme coort follows th' iliction returns.” Writing at about the same time and at the same institution as Bickel, political scientist Robert Dahl provided its canonical formulation: “the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” His view is not out of fashion. Consider the skeptical response of Lambda Legal and other gay rights groups to Perry v. Schwarzenegger, the gay marriage law suit currently being tried in San Francisco. Those groups worried that the “Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.” By and large, though, this is an elite view, not found on CNN, MSNBC or Fox but dominant on the pages of the law reviews and the political science journals.
These views seem in descriptive and normative tension: One posits an assertive Court that is an embarrassment for a democracy. The other hypothesizes a timid bench, and implicitly begs the question why have an additional layer of constitutional scrutiny (after all, state and federal politicians swear an oath to uphold the Constitution, and there’s no reason to believe that all of them are fibbing).
Toward the end of his book setting forth the Court’s relations with public opinion from the Founding onward, NYU School of Law professor Barry Friedman sets his cards on the table, plumping largely, but not wholly, for the second view. His thumbnail account of the birth of 1980s originalism is especially amusing and telling. According to Friedman, “the meaning of originalism” as it is presently held to be, came out of a seminar at the Reagan Department of Justice that “clarified” the initial formulation of the theory by Ed Meese. No attentive reader will miss the irony in Friedman’s comment that there is “no small tension” between this late-in-the-day revelation and the purported historical bona fides of originalism.
More generally, Friedman’s history picks out moments at which the Supreme Court has come into conflict with political majorities and has not prevailed. These range from Chief Justice John Marshall’s decisions limiting state entrenchments on Native American lands in the early 1800s to the Dred Scott decision in 1857 and the judicial retreat from and repudiation of Reconstruction after the Civil War. Friedman takes the story up through the twentieth century, when the Progressive Era Court changed direction to endorse the New Deal after FDR’s sweeping 1936 electoral win and the 1970s Court tacked away from the elaboration of criminal procedure rights after Nixon declared a war on crime, picking up on tattered threats of the Goldwater campaign.
As these examples should make clear, the ideological polarity of judicial frailty is uncertain. We might today hail the New Deal while expressing sorry for Worcester v. Georgia, which preceded the shameful expulsion of the Cherokee from Georgia. Some decisions, moreover, are ambiguous in valance today. Friedman’s account of congressional efforts to defend Reconstruction from the Supreme Court by stripping its appellate jurisdiction is especially useful as a case study today in ambiguity: On the one hand, most people would endorse the legislative goal. On the other, the legislative method of targeting particular cases via jurisdiction stripping measures would make many uncomfortable. Knowing that key Senators lied on the floor of the chamber by claiming no pending suit would be ousted by the bill, as Friedman notes, hardly helps the congressional case.
So it is hard to argue with Friedman’s conclusion that ours is a “democratic court” and that the court gives the Constitution meaning not by its decisions alone but “through the responsiveness to public opinion.” The naïve critique of counter-majoritarian plays well on the Sunday morning shows, but is barely analytically useful.
But that conclusion is also the beginning, rather than the end, of the story. Recall Robert Dahl’s formulation: the Court responds to “the lawmaking majorities.” In the same essay, Dahl pointed out that the notion of a stable majority in the United States is a fiction. Rather, ours is a process of “minorities rule, where one aggregation of minorities achieves politics opposed by another aggregation.” The modalities of aggregation, moreover, are not neutral. As scholars from Kenneth Arrow have cogently warned, institutional design, and the allocation of agenda control through that design, will often have a determining influence upon outcomes. At times Friedman, whose more academic work shows a nuanced sensitivity to this point, writes in a way that flattens out this complexity by suggesting there is such as thing as the will of the people (the title of his book surely does not help in this regard).
Even if there was such as thing, it is unclear how the Court is so attuned to it. As Friedman concedes in a very brief section on this puzzling question in his last chapter, quite how the Court can track public opinion, even of “the lawmaking majorities,” is deeply puzzling. The Court is known for its insularity. Justices are not selected because they have their fingers on the popular pulse. If anything, one might expect presidents to pick Justices in ways that skew away from median national opinion, and toward the president’s priors.
An account of Supreme Court must therefore tell us something about the interaction between the Court and various minorities, and explain when it is that judicial action will empower some groups, and when it will enervate them. For a case such as Perry v. Schwarzenegger, for example, it would predict whether a decision in favor of gay marriage would cement a growing tide of public support, or whether it would, much like Roe v. Wade, provide a focal point for public opposition.
Whatever the possibility or merits of such a model, Friedman’s book is pitched differently. And it is unfair to criticize a book for not doing something it didn’t set out to do. The Will of the People responds to, and complicates, a prevailing public narrative of a countermajoritarian. In a sweeping and insightful history encapsulation of the Court, Friedman favors narrative clarity over theoretical density. This yields a book that is accessible to a wide reading public. His choice should be a counted as a point in the book’s favor. Given the fragmented and distorted public debate today about the Supreme Court, Friedman’s book deserves to reach it’s a large and diverse public.