Saturday, September 26, 2009

Bazelon reviews Friedman, The Will of the People

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution by Barry Friedman, which will be released next week, has been reviewed by Emily Bazelon for the New York Times. Hat tip. She finds the book a "thought-­provoking and authoritative history of the Supreme Court’s relationship to popular opinion." Legal historians have seen Friedman's ideas develop in a series of articles, which are posted on SSRN.

According to Bazelon, Friedman

sees the justices and the people as partners in a “marriage” that bypasses the elected legislature and the president. “It frequently is the case that when judges rely on the Constitution to invalidate the actions of the other branches of government, they are enforcing the will of the American people,” he says."...

How well does this claim hold up against the historical record? Friedman’s best evidence is that the people and the court are still married. To be sure, a divorce in the form of diminished authority for the justices would be hard to bring off, given the legal obstacles. And particularly early on, a few marital spats led to serious rifts and estrangement. McCulloch v. Maryland, the 1819 decision upholding the power of Congress to charter a national bank, infuriated states’ rights advocates and brought that century’s fight over federalism to a head. A decade later, when the court ruled in favor of Cherokee sovereignty over Georgia’s assertion of authority to remove the tribe, the state refused to comply, or to appear before the court at all. In the reaction to Dred Scott, the divisive 1857 decision to deny citizenship rights to black people, Friedman sees an “evolution in the nation’s commitment to judicial review,” because the ruling was not met with defiance. But since the country cracked apart four years later in a civil war that the Dred Scott ruling hastened, the fact that the court emerged tarnished but otherwise unharmed seems a bit beside the point.

Friedman’s case strengthens in the 20th century....Friedman is certainly right that over time, the court has proved itself the Teflon branch of government.,..

All of this serves as a response to the argument that judicial review is bad for democracy because it resides in the unelected branch of the federal government. If the court has stayed in the public’s good graces by increasingly reflecting its will, then the justices have learned to make themselves accountable.

Continue reading here.

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