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Ask the Author with Barry Friedman, Part II

The following is the second half of an interview with New York University law professor Barry Friedman, author of the new history of the Supreme Court, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.  The first part is here.

6.  What do you say to those who would argue that the path of the Court’s decisions depends more importantly on the particular people appointed to the bench than any changes in popular opinion?  For example, do you really think that the Court would have reached the same decisions on abortion, federalism, and affirmative action if Judge Bork had been confirmed rather than Justice Kennedy?  Does the Court’s decision in Parents Involved v. Seattle School District No. 1 reflect a sudden change in public attitudes about affirmative action in education, or the fact that Justice Alito replaced Justice O’Connor?

The first is a great counterfactual.  Of course, I’ll point out Bork wasn’t confirmed, which I think tends to support my thesis rather than detract from it.  And if he had been, then the things he’d have done wouldn’t have been “outside the mainstream” – which was the primary objection to him.  But suppose we had a stealth Bork?  Then perhaps the decisions would be different . . . initially.  Do you mean to tell me that if the Court had overruled Roe, hewed to a strong federalism line and banned affirmative action entirely, that would have gone down quietly?  I don’t think so.  And I think in the face of the inevitable uproar, you’d have seen the Justices backing off.

I concede, though, as your second example shows, that personnel make a difference.  I’ll reiterate:  personnel changes reflect political tides to some extent, so I’m not sure that separates us in terms of outcomes.  It is all about the margins.  Justice Alito is more conservative than Justice O’Connor and we have a more conservative Court.  But how much so?  I can’t help but believe that this Court holds back from its deepest preferences, understanding it may well be more conservative than the American public.

7.  The book argues that in recent times, the Court has largely mirrored a moderate public sentiment on a wide range of social issues, but that this moderate public consensus is masked by extremists’ control over the political parties.  How have the parties become so disconnected from the popular will?

Others are more expert on this issue than I, like my colleagues Sam Issacharoff and Rick Pildes, but I rely on their work and others in explaining this.  The primary system is part of the problem.  It tends to give us more extreme candidates.  Gerrymandering, and improved information technology, yields a more partisan Congress.  But the activism I describe in Chapter 10 is not just the parties.  It is the sort of viewpoint extremism that you hear in an increasingly segmented media market.  The simple fact is, as I think I show in some detail, the Rehnquist Court was called activist by both sides of the ideological spectrum, but on most big issues the Court stood right where the American people were.  Though again, hardly on all the issues, that’s not my claim.

8.  Does the fact that extremist views dominate the political process undermine the book’s suggestion that the Court generally follows moderate popular opinion in order to avoid political countermeasures like jurisdiction stripping and court-packing?  After all, aren’t the extremists who hold political office the ones who would be implementing those countermeasures?

Fair point.  First, though, I’d distinguish officeholders from extremists.  As I said, a lot of the extremism I talk about in the book is among activists, not necessarily the candidates or those elected.  But my main point in the book is the public can both shelter the Court from aroused officials and goad officials into acting when they don’t want to.  An example of the first is 1937; Roosevelt and his partisan Congress should have been able to pass the Court-packing plan, even taking account of those members in both houses that balked.  But the members looked for their cues from the folks back home.  An example of the latter is during the “Lochner” era:  the Congress was pretty conservative but there was a lot of pressure in Washington and in state capitols to do something about the courts.  The federal judiciary came off relatively unscathed – though not entirely, we got three-judge district courts, for example, in the wake of Ex Parte Young.  But some state judiciaries did not fare nearly so well.

9.  What does the election of President Obama and Democratic control of Congress portend for the Court?  Do you expect the Court to change its views on issues like abortion and affirmative action?  Do you think that shifts in popular opinion regarding the role of government in the business sector, arising from the financial crisis, will affect the Court’s decisions?

I’m as interested to see as the next person.  I think the Court has been moderating itself – I said as much in a New Republic piece.   ( )  I think the Chief Justice was stung by some of the criticism after the 2006 Term, especially about the stealth overruling of precedent.  But it is a conservative Court, in my view more so than the electorate, and we’ll have to see how that plays out.  You know my shtick.  They moderate, or they catch a lot of heat . . . and moderate. It all comes out in the same place eventually.  I’m particularly interested in the financial issues, which are really just starting to hit.  The Roberts Court had a strong pro-business beginning, but that has already moderated, and I’m hardly the first to note there are a lot of angry people out there on economic issues.

10.  Finally, do you regard the Court’s general tendency to track public opinion to be a good thing?  Why or why not

Ah, so you do agree there is a general tendency?  :)  That’s the million dollar question, it is where I end the book.  As I say in the Conclusion, I do think that instead of fretting about whether the Court is trumping popular opinion, we ought to devote a little concern to whether the Court is even capable of doing that minority- and rights-protecting thing we hear so much about.  Of course, one person’s constitutional right is another’s loose and sloppy construction – think of abortion or economic rights – so even this is complicated.

My main conclusion is that the most important function of judicial review is to provoke public debate on major constitutional issues.  If the Court then ultimately comes into line with the “considered” views of the American people – it is hard to disagree with that.  But the key word here is “considered.”  I find it very hard to think of a reason to approve of a Court that simply rubber-stamps transient – and sometimes overheated – public opinion.  What’s the point of that?