Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009) 624 p. $35.00
Barry Friedman’s The Will of the People, is a terrific account of the interplay between public opinion and the Supreme Court. The heart of the argument focuses on the Supreme Court’s doctrinal about-face in response to Franklin Roosevelt’s court packing plan. The standard explanation treats the Court’s doctrinal shift as an embarrassing anomaly. Generations of constitutional law teachers have told their students that Supreme Court decision-making is driven by the law, not public pressure, except, as occurred in the 1930s, in highly unusual circumstances. The Court, it is said, is designed to withstand the buffeting of popular winds.
In The Will of the People, however, the Court’s famous doctrinal shift in the 1930s is seen as the rule, not the exception. The standard story told by constitutional law professors to their students is bunk as (p. 9) “[h]istory makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated.” The Court changed course because it learned that it would not be permitted to (p. 4) “stray too far from what a majority of the people” want. Rather than check majorities as the framers envisioned, the Court engages in a dialogue with the public over the meaning of the Constitution.
Of course, an account that argues that the Supreme Court is responsive to democratic currents raises empirical and theoretical issues. The empirical question is why does the Court heed public opinion; the theoretical question is why do we need the Supreme Court if, like Congress, its job is to aggregate public demands. The answer to both questions lies in the interplay between constitutional law and public backlash. The Court fears public anger and eventually trims its sails if there is sufficient outcry. The Court, moreover, channels citizen input differently than does Congress. Congress responds to the immediate desires of the electorate whereas the Supreme Court listens to its long-term demands. A greater degree of mobilization is required to influence the Court than is needed to influence Congress. It takes a sustained wave of public anger to convince the Court to change course. In short, the Court’s attenuated relationship to popular opinion makes constitutionalism possible.
The book defends this thesis by providing a masterful portrait of the interplay between doctrinal change and popular input throughout the course of American history. In The Will of the People, the Court swims in the sea of public opinion, not the law. The usual actors in political accounts of the Court—Presidents, Justices, and Senators—recede in the background as We the People move to the center stage. Even those who disagree with the book’s thesis will find much of value in thinking about the relationship between ordinary citizens and the Court. The Will of the People is an important corrective to constitutional law casebooks and should be on the shelf of every teacher of constitutional law.