Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. For twenty-five years, he has had one foot in the academy and one foot in legal practice. He has been a clerk with Judge Phyllis Kravitch on the Eleventh Circuit, practiced at Davis, Polk & Wardwell, taught at the University of Alabama, Georgetown University, Vanderbilt University, and now NYU. He has published over fifty academic articles in leading journals, and, along with Steven Burbank, co-edited Judicial Independence: An Interdisciplinary Approach. Friedman has been the affiliate president of the American Civil Liberties Union of Tennessee, and he contributes regularly to The New Republic, The New York Times, The American Lawyer, Forbes.com, and others. The Will of the People, featured in his Rorotoko interview, is his first book.
It is 1867. The Civil War is over, but the Union is struggling to bring the Confederate States back in. A procedure has been announced that requires ratifying the 14th Amendment. Some Confederates are fighting the process every way they can, boycotting elections, bringing court battles. They are hoping if they can stave off ratification until the 1868 elections, the tide will turn in their favor. The Confederates argue military rule of the South is unconstitutional, and must cease. The Supreme Court has ducked a number of attempts to bring the issue to it.Then, Union troops take into custody an unreconstructed newspaper editor named William McCardle who is writing scurrilous editorials and publishing the names of southern citizens that vote in Union elections. McCardle sues for his freedom (and keeps the litigation going even after released on bail) arguing martial law violates his rights.Congress is petrified the Supreme Court will take the case and strike down the whole congressional Reconstruction plan. No way Congress will allow this after all the Union blood spilled. Indeed, at the very same time, Congress is trying the impeachment of President Andrew Johnson, basically accusing him of disloyalty. So Congress takes action: it strips the Court’s jurisdiction to hear McCardle’s case, all the while pretending it is not doing much.What will the Court do in the face of this threat to power? Stand idly by, to be, as one member of Congress put it, ravished without a cry?(Hint: the Court knows a superior force when it encounters one!)The Roberts Court is already under the microscope. It was chastised by the President for its decision in Citizens United, the case striking down congressional regulation of corporate spending in elections. The Court is widely seen as extremely pro-corporate America during a populist moment.In its next Term, the Supreme Court will face some of its largest issues in years. At the top of the list is “Obamacare.” Some courts have held that the congressional requirement that the uninsured buy health care violates the Constitution. Critics have already observed that judges upholding the law were appointed by Democratic presidents; those who have struck it appointed by Republicans. Then, there is Arizona’s controversial measures to challenge illegal immigrants with aggressive policing. California’s gay marriage case is also likely to find its way to the Court.What can we expect out of the Justices? It is difficult to say.The claim I make in The Will of the People is not that the Court always follows public opinion. But that, surely, the Court is influenced by it, and that, in the long run, the Court tends to fall into line.So if you want to know which way the Court may go, the tea leaves to watch are public opinion on all these issues.This is a claim about which I am deeply ambivalent—as might you be. On the one hand, it is troubling that the fate of the Republic on critical issues would be decided by nine unelected and relatively unaccountable people. On the other, the rule of law seems to compel judicial independence; the Constitution would mean nothing at all if passing majorities always had their way.Here’s a way to put a face on it all that seems both plausible and attractive. Perhaps what the Supreme Court does is focus the attention of the American people on the question of what the Constitution should mean.The American Constitution is well over 200 years old. You are deluding yourself if you think that our Constitution means today what it meant in 1787, or that the Court so interprets it—or that it could!One alternative, that the Constitution means whatever a majority of nine people decide it means, is itself not very comforting: major issues are decided by 5-4 votes.Yet, IF what really happens is that Supreme Court decisions force us to debate fundamental issues—abortion, presidential power over Guantanamo detainees, etc.—and to come to some long-term social consensus about our most fundamental values; and IF the Court ultimately comes to mirror those values—THEN perhaps this is a plausible story about the role of the Supreme Court in American society.
Barry Friedman The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution Farrar, Strauss and Giroux624 pages, 5 1/2 x 8 1/2 inches ISBN 978 0374532376ISBN 978 0374220341
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