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Q&A

The Supreme Court isn’t as aloof as we think

Barry Friedman

By Samuel P. Jacobs
July 26, 2009

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THIS MONTH WE survived what has become an exhausting national ritual, the Senate grilling of a nominee to the US Supreme Court. Behind the energy and intense attention that Americans train on potential justices like Sonia Sotomayor lies an important assumption: that the Supreme Court is profoundly autonomous, shaping society with little attention to what the American people might want at the moment. The nomination process, then, isn’t just a job interview for a lifelong position - it’s the only real chance for the public, and their elected representatives, to affect a uniquely powerful institution.

But is the court really so removed from the tides of American popular opinion? Barry Friedman, a law professor at New York University, examined over 200 years of American judicial history and found that we tend to overlook how responsive to prevailing opinion the Supreme Court actually is. In his forthcoming book, “The Will of the People” (Farrar, Straus, and Giroux; September 2009), Friedman suggests that the court tends to reflect public sentiment more closely than we think - and may, in fact, do a better job of it over time than the political parties that are notionally elected to reflect our will.

Friedman spoke with us by phone from Atlanta, where he was attending a conference.

Ideas: How do we typically think about how the court relates to public opinion?

Friedman: The happy story is, the court is not accountable to politics or public opinion so it can protect constitutional rights and stand up for minorities, particularly when the chips are down. The sad story or the angry story is the story that says, who are these folks to be interfering with what the public does? ... They are not accountable to anybody.

Ideas: But when you looked at it historically, that’s not what you found?

Friedman: At least in the period since 1960, the court’s decisions tend over time to converge with public opinion. The court and the public are on the same page, and that totally raises eyebrows. It is not what you think the court is doing. . . . On the salient issues, on the big issues, over time, the court and public opinion come in sync with one another.

Ideas: Justices can’t be voted out, so why would they stay in touch with public opinion?

Friedman: The justices are human. It’s not just that they like to be liked, although often they do like to be liked, it’s just that they are living in exactly the same society that we’re living in. They’re looking at the same stuff. They are part of the public.

Ideas: Do we really want a court that bends toward popular will?

Friedman: Everybody who is angry that the court would act contrary to the popular will, you can relax. It turns out that is not true. But now all of you who like the court to be there as a safeguard ... you should be a little concerned. If your image of the court is here is going to be this institution to save us when the chips are down, it may not do it. I give this one example of the internment of the Japanese-Americans in World War II [which the court upheld]. Today, at least, we commonly think this was a terrible mistake. There’s lots of evidence that it was racially motivated, and the closest thing to concentration camps that we’ve had in the country.

Ideas: Historically, how have we seen the court figuring out how to stay within the mainstream?

Friedman: In 1954, the court decides Brown v. Board of Education and that’s consistent with what we want out of the court, but from then on, it stumbles around. It makes mistakes ... It decides no prayer in school, and people say, OK, thanks, but we’re going to keep praying. It eventually ... begins to understand the scope of its power, what it can demand and what it can’t. We begin to have a dialogue between the American people and the court about what particularly constitutional rights should look like.

Ideas: What are the key moments in that dialogue?

Friedman: Abortion’s a really important one. The court rules in Roe v. Wade in 1973 that a woman has a right to choose to have an abortion . . . some people are pleased, and the decision makes sense in its context, but some people are very angry and they mobilize against the court. There’s 20 years of mobilization over this issue, including presidential elections, which is a big deal. Twenty years after Roe, in 1992, the court decides the Casey case, and it adjusts Roe, it tones it down. It cuts back to the right a little bit, saying we’re going to let states restrict rights to abortion that they didn’t allow before ... By 1992, we had this huge social debate about the issue, and the court confirmed that debate in a way that no other branch of government really managed to do.

Ideas: The people and the Constitution tug at each other.

Friedman: There’s been this contest throughout American history whether the constitution should prevail or whether the will of the people should prevail. What’s interesting in modern times is that they become more congruent. I think one of the things that powers the court is the loss of faith in democratic institutions. People aren’t sure whether Congress represents their will, or whether state legislatures represent their will. They’re worried about special interests. Even in the political parties, they see extreme partisan bickering. The court manages on some very contentious social issues to nonetheless steer down the line of public opinion. I think that’s a great source of power for the court.

Ideas: If the court and public opinion line up so closely, does it really matter who gets nominated?

Friedman: Absolutely. One needs only look at the frequent 5-4 decisions between liberals and conservatives to know who is on the court matters. The court won’t always be immediately in line with public opinion, so there will be consequences.

Ideas: What direction is the Roberts court going to go in?

Friedman: It looks at the moment like we have a court that would like to be more conservative with an American public that would like to be somewhat more liberal. If that endures and manifests itself, it could be interesting. On the other hand, the more likely story is, it doesn’t. The court understands this and understands its limits.

Ideas: In the end, the people set those limits.

Friedman: People often point to this court and say it’s one of the most powerful judicial bodies in the world ... The court is powerful because we empowered it to be that way.

Ideas: What does that say about the American people, that they’ve wanted this body to be there?

Friedman: I think it’s one of the more remarkable things about the American public ... Theorists and academics see this fight to be democratic principles against constitutionalists ... They are angst-ridden about how to accommodate it. In the end, people just work it out every day. It’s natural for us. It’s like breathing air. It’s part of who we are.

Samuel P. Jacobs is an assistant editor at the online magazine The Daily Beast.