Barry Friedman’s The Will of the People, is a terrific account of the interplay between public opinion and the Supreme Court. The heart of the argument focuses on the Supreme Court’s doctrinal about-face in response to Franklin Roosevelt’s court packing plan. The standard explanation treats the Court’s doctrinal shift as an embarrassing anomaly. Generations of constitutional law teachers have told their students that Supreme Court decision-making is driven by the law, not public pressure, except, as occurred in the 1930s, in highly unusual circumstances. The Court, it is said, is designed to withstand the buffeting of popular winds.
In The Will of the People, however, the Court’s famous doctrinal shift in the 1930s is seen as the rule, not the exception. The standard story told by constitutional law professors to their students is bunk as (p. 9) “[h]istory makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated.” The Court changed course because it learned that it would not be permitted to (p. 4) “stray too far from what a majority of the people” want. Rather than check majorities as the framers envisioned, the Court engages in a dialogue with the public over the meaning of the Constitution.
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