Ask the Author with Barry Friedman, Part I

By Kevin Russell
on Jan 25, 2010 at 5:20 pm

The following is the first part of an interview with New York University law professor Barry Friedman about his book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, published in 2009.  Part II comes tomorrow.

Professor Friedman will give a talk on the event tonight at 7 p.m. at Politics & Prose.  A panel discussing the book’s thesis will be held this Friday, January 29 at the National Constitution Center.  Check the SCOTUSblog calendar for more details.

1. What would you say that the basic thesis of your book is?

That the Supreme Court is, and always has been, accountable to the popular will.  That’s contrary to how most people think of the Court and the justices.  This has two implications, and I want to separate them out.

First, I’m largely writing against the claim that the Court (with its power of judicial review) is an undemocratic institution in American democracy.  That’s the charge leveled at the Court for over two hundred years.  Alexander Bickel, the great Yale law professor, called the Court’s power of judicial review a “deviant institution” in a democracy, and plenty of politicians have said the same.  Them’s strong words.  Yet, I think I show that, to the contrary, the American people have both shaped the institution of judicial review and come to believe the Court should wield it.  It is very much a part of American democracy as most Americans understand that democracy to operate.

Second, in recent years in particular, the Court’s decisions on salient issues have tended to come into line over time with popular preferences.  I stress both those things.  I am not claiming all the Court’s decisions are consistent with popular opinion, and certainly not that they always will be.  Or that they should.  I hope we get to talk about that.

2.  Can you explain the mechanism by which popular opinion affects the Court’s decision making?  Are Justices subjectively considering how their decisions will play in the public’s view?  Or is the process more indirect than that?

That’s a complicated question, which I discuss in the Conclusion.  It is complicated in part because we have limited evidence about mechanisms, and much of what we see is circumstantial.  The Justices don’t tend to give speeches much less write opinions saying “we are following public opinion.”  Also, each Justice is different.

In some cases they definitely think about how opinions will play in the public.  We all know this was the case with Brown v. Board of Education, and you can’t read the plurality opinion in Planned Parenthood v. Casey and think otherwise.  We can also see this concern in the correspondence of some Justices, or in or actions they took – like Chief Justice Hughes orchestrating part of the response to FDR’s Court-packing plan behind the scenes.

3. The book suggests that the Court generally follows public opinion in large part because of the prospect that straying too far from the general will of the people would provoke efforts to rein the Court in, through various measures such as impeachment, jurisdiction-stripping, court-packing, or constitutional amendment.  Does that thesis apply to all judicial decisions, or only those the public cares enough about to correct?  And if the latter, how many decisions really address questions of such importance to the public?

First, to clarify, I don’t say the Court generally follows public opinion.  I say that over time on issues of importance to the American public, the Court tends to come into line. And that in general the Court does not stray far from mainstream popular views.  There’s a big difference there.  In the very best sense, what the Court does on these prominent issues is ratify what I call the “considered judgment” of the American people.  But on plenty of lesser issues there is room to roam, and the Justices do – just not too far.

Second, you are right that a big reason for the congruence we see is that the Justices want to avoid getting into hot water.  But there are other reasons as well.  A closely-related one is simply to obtain compliance.  No court wants to issue orders that will get ignored.  So, call this the “carrot” to the “sticks” you mentioned.  In addition, some Justices care more than others what the public, or posterity, or whatever, thinks about them.  There are a variety of possible reasons or the alignment between public and judicial views; and the social science on this is all still pretty basic.  But I hope my final few chapters make clear the phenomenon itself, even if the precise mechanisms are still a bit unclear.

Still, as you folks at SCOTUSblog know best, there are lots of cases that come to the Court that are technical or obscure and not really on many people’s radar.  Plus – and this is something I’m writing about now – the Justices can be savvy about doing things in a way that attracts less attention.  I think the Roberts Court has been particularly good at this.  So there will be plenty of cases in which Court has freedom of movement – if only because of a collective public yawn.

But I do want to push back against your skepticism of the scope of this.  The Justices don’t always know what will be important or not.  They can get surprised (witness the Kelo decision).  That undoubtedly causes them to be more cautious than they need be in some instances.  Or at least some of them; remember, the far sides of the Court on the left and right don’t count very much in this regard.  Also, any issue can become salient if someone decides to make hay about it.  Social scientists call these people “policy entrepreneurs” — they see a way to arbitrage what will be public unhappiness with a decision once the public in informed about it.  Think of talk radio here.

4.  In discussing the Rehnquist Court, you note that the Court seemed to vacillate over time on a number of issues.  For example, you describe that for a while the Court was issuing strong pro-state rights federalism opinions, then it backed off a bit.  The book suggests that these vacillations followed shifting public opinion (as illustrated, for example, by the fate of proposals to shift responsibility for administering food stamps to the states).  Does the public really pay close enough attention to such fine details of public policy that its views on questions as obscure as the scope of the Commerce Power and Eleventh Amendment immunity could really be affecting the Court’s decision making?

This is a fair question.  I used to chuckle at Linda Greenhouse’s stories on the Rehnquist Court decisions about the Eleventh Amendment and Section 5 powers, wondering who was following those riveting tales to the very end.  Still, as you know, the Court took a beating from the academy and from many politically-involved folks over the Section 5 cases.  After Garrett (which itself fell on the heels of Bush v. Gore), the whole federalism thing kind of came apart.  So you tell me.

5. All of the methods of correcting the Supreme Court’s course require rather significant efforts that seem likely to occur only if there is not only strong, but very broad disagreement with the Court’s decisions.  Is that right?  And if it is, does that not also limit the kinds of cases in which there is a credible threat of public retaliation?  Do you think this makes any difference to the way the Court decides cases?

You are pretty skeptical, aren’t you?  Did you think the alignment between all those polls and the decisions described in the last chapter were a coincidence?  I absolutely think it makes a difference to the way the Court decides cases.  Remember, we are talking about salient cases.  We are talking about cases in which the Court is often closely divided, so it only takes a person in the middle that is attuned to the mainstream.  Sandra Day O’Connor was amazing in this way.  Owen Roberts, the swing Justice on the New Deal Court, had to learn the hard way.

Political scientists have a doctrine they call “anticipated reaction.”  I use a marriage analogy in the book to explain this.  When a couple gets married, there are likely to be some dust ups at the outset.  It takes time for the rules to get worked out.  But if the relationship is going to endure, things quiet down.  Why?  Because the couple learns the rules – no dirty laundry on the floor, no coming home late, whatever – and both members act to avoid trouble.

What this means is that by now the Justices have a sense of what they can do and what they can’t, and they stay within bounds.  So we don’t see the dust-ups today.  We saw plenty of them in American history:  that is what the first two-thirds of the book are about!  I don’t find that possibility surprising at all.  I’m pretty confident that is what happens.  And when the Justices misjudge, people start hooting and hollering, especially on Capitol Hill or Pennsylvania Avenue, or in major newspapers, or in the blogosphere, and the Justices step back.

The second and final installment of this interview appears here.