Americans from across the political spectrum like to complain about the unchecked power of the Supreme Court. Whether it’s the religious right lamenting Roe v. Wade or feminists outraged by the Lilly Ledbetter case, the losing side in constitutional disputes is apt to speak of “activist judges” thwarting democracy with decisions that defy public opinion and undermine the authority of Congress and the president.
In The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution , legal scholar and former Vanderbilt law professor Barry Friedman sets out to show that the court has never been insulated from popular sentiment, growing increasingly powerful through rulings that promote the kind of society and government the American people seem to want.
Friedman begins the book with a brief account of Franklin D. Roosevelt’s notorious attempt in 1937 to “pack the court” with additional appointees to dilute the votes of sitting justices who regarded his New Deal policies as unconstitutional. The public was divided on the president’s efforts to undermine the independence of the Supreme Court, but largely shared his fury at seeing New Deal legislation struck down. While Congress debated the issue, the court abruptly reversed course, and Congress subsequently voted down Roosevelt’s proposal.
“In effect,” writes Friedman, “a tacit deal was reached: The American people would grant the justices their power, so long as the Supreme Court’s interpretation of the Constitution did not stray too far from what the majority of the people believed it should be.”
As Friedman points out, the struggle over the New Deal is one of many instances when politics influenced a Supreme Court decision. The Will of the People meticulously traces the history of judicial review — the judicial assessment of the constitutionality of legislative and executive action — up to the Rehnquist era, revealing that the Supreme Court has consistently hewed to popular opinion. In cases where it has not, the result has been a groundswell of opposition in the political realm, leading to the appointment of new justices with substantially different views of the Constitution. Friedman describes judicial review as a “dialogic process of ‘judicial decision — popular response — judicial re-decision.’”
He argues that the long-term effect of the Court’s rulings is always determined by the public’s reaction. “One of the most valuable things that occurs in response to a Supreme Court decision,” he writes, “is backlash.”
Friedman points out that conflict within a pluralistic society is inevitable, and there will always be fierce criticism of the Supreme Court from those he calls “partisan extremists.” The Will of the People, with its richly detailed account of the court’s most important decisions, makes a compelling case that, however vigorous the protests, judicial review has generally served prevailing public sentiment, though not always the public good. In the long run, Americans get the rulings they want and deserve. As Friedman writes, “Ultimately, it is the people (and the people alone) who must decide what the Constitution means.”