The Will of the People
I recently read Barry Friedman’s book on judicial review, which I would definitely recommend for anyone who wants to learn about the evolution of the Supreme Court. While the history that Barry covers is useful in and of itself (and I’ll need to grapple with some of his points as I revise my book), there are some larger themes that are worth discussing.
First, I agree with Barry that constitutional scholars should spend more time worrying about whether the Court can stand up to an aroused popular will. There are, of course, instances where the Justices have defied majority opinion, but those cases get lots of attention as opposed to the situations where the Court folds like a cheap tent and upholds popular curbs on civil liberties when they should know better.
Second, I am not convinced by the book’s happy ending, which more or less says that “Well, now we’ve solved our problems with judicial review and reached a stable equilibrium.” People have said that in the past, then the next crisis comes. Indeed, a collision between President Obama and the Roberts Court may test this conclusion in the next few years.
Third, I’m left wondering how federalism fits into Barry’s story. Many scholars have commented that the Court often suppresses outliers (i.e. those few states that reject a national consensus about something) in its cases. That is consistent with the thought that the Court conforms to public opinion. But do regional or states-rights’ interests (the laboratories of democracy) have their own claim to legitimacy? To what extent should the court be countermajoritarian by refusing to strike down state practices that deviate from constitutional norms?
Finally, there is a Keynesian “in the long run we’re all dead” problem in saying that in the long run the Court is disciplined by or responsive to public opinion. Many of the constitutional crises described in the book were painful and costly. They are probably unavoidable and even beneficial in that they clarify the popular decision that finally emerges. But I’m not sure that’s so comforting when the Court and the political branches are at loggerheads.