BRIGHT IDEAS: Barry Friedman’s The Will of the People

Gerard recently blogged about Barry Friedman‘s exciting new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and lucky for us at CoOp, I had a chance to talk to Friedman about the book.  Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of La9780374220341w at New York University School of Law whose vast and impressive scholarship focuses on constitutional theory and judicial decisionmaking in constitutional cases.   He answered several questions about the book; I produce his remarks below.

SO, WHAT LED YOU TO WRITE THIS BOOK?

FRIEDMAN:  The proper role of judicial review has always been one of the real challenging questions in constitutional law.  The goal of most scholars has been to find a theory that reconciles judicial review with democracy, necessarily seeing the two as inconsistent.  From the time I began teaching I hoped to jump into that debate – except that I never saw the two as inconsistent.  Whether it was Planned Parenthood v. Casey, Furman v. Georgia or Bowers v. Hardwick, I saw the Court as responsive to public opinion.  As some readers of the blog no doubt know, I wrote several (infelicitously named) law review articles looking at the question of when the “counter-majoritarian difficulty” took hold.  I then read a lot of political science.  Finally I decided a book was in order.

THERE ARE A LOT OF HISTORIES OF THE SUPREME COURT, AND OF JUDICIAL REVIEW.  WHAT MAKES YOURS DIFFERENT?37883840

FRIEDMAN:  Well, the focus of most histories is on what the Court is doing at any given time – as well as why, and what the impact is on constitutional law.  Instead of focusing on the Court, my book is about how the public responded to judicial decisions, and how the interaction between the Court and the public shaped both the institution of judicial review, and the meaning of the Constitution.

DO YOU HAVE ANY PARTICULAR INTELLECTUAL ASPIRATION FOR THE PROJECT, BESIDES TELLING THE STORY?

FRIEDMAN:  Besides selling books? 🙂  Seriously, though, my hopes depend on the audience.  I certainly would like to put to rest what has been the dominant criticism of judicial review, that it necessarily trumps majority will.  That applies both in the general public and the academy (though I’m certainly more skeptical of success in the former).  But the book differs from a lot of books in one notable respect – the theory animating the history is at the end of the book, not the beginning.  There are two reasons for that.  First, on the advice of friends I came to understand that it was easier to “get” the theory having seen all the evidence.  But more important, I intended the book to suggest a research agenda.  We’ve been asking the wrong questions about judicial review for a long time; it is an auspicious moment for legal academics and their counterparts in the social sciences to pursue some new avenues, ones I believe are more apt.CAN YOU GIVE US AN EXAMPLE?

FRIEDMAN:  Sure.  I don’t argue the Court always is in sync with public opinion, only that the public has the capacity to hold it accountable.  But we don’t know enough about the mechanisms of this, and we certainly don’t know when the Court is likely to interpret the Constitution in a way consistent with the predominant views of the community.  There certainly are areas of slack.  For example, I’m currently working on a piece about stealth overruling that gets at some of this.  Increasingly I find scholars asking questions of this sort, and if The Will of the People spurs more inquiry of that nature, I’ll be very happy.

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