The Will of the People

The Will of the People

Review by Sanford Levinson

The Supreme Court has been a noteworthy part of the American institutional structure for over two centuries, with its own distinctive history and record of successes and failures. A recurrent issue, almost from the beginning, is the degree of genuine “independence” the Court has from the other branches of our national political system, given that no person gets to the Court without being nominated by a politically-sensitive president and then being confirmed by an equally politically-attuned Senate. NYU Professor of Law Barry Friedman has written an impressive overview of the Court’s history challenging those who overestimate the Court’s autonomy and, therefore, the degree to which it serves as a “countermajoritarian” body in our system.

As suggested by the title and subtitle, Friedman emphasizes both the importance of public opinion as a measure of “the will of people” and the degree to which the Court, historically, has been willing to subordinate itself to that will, at least most of the time. The great exception, of course, is the determined effort to stave off the New Deal in the 1930’s, but the Court was ultimately routed and, by 1942, was unanimously upholding remarkably expansive federal legislation, not least because of the inexorable passage of time and concomitant resignations and deaths, followed by new appointments representing a distinctly different political and jurisprudential sensibility.

Friedman’s thesis is succinctly captured in his last chapter, “What History Teaches”: “To the extent that judges have freedom to act, it has been because the American people have given it to them. Judicial power exists at popular dispensation.” After all, “the United States is a democracy, and the will of the people still prevails, at least on the big issues.” His most important point, in many ways, is that the aftermath of cases is far more important than any given decision itself, for it is then that a “dialogue” occurs between the Court and the public as to what will actually happen. “American politics has been a constant, unrelenting process of constitutional contestation and dispute,” which means, he says, that one must be constantly attentive to a “process of decision, response, and redecision” that plays itself out over many years (and perhaps decades, as with abortion or affirmative action, to take only two notable modern controversies). Thus the final sentence of the book asserts that “when it comes to the Constitution, we,” that is the collective citizenry, “are the highest court in the land.”

Some readers may believe that Friedman accepts too easily the “democratic” self-image of the United States and that he might have emphasized more the extent to which the justices are inevitably part of the ruling elite of the given moment, but this is simply to say that he has not written the last word. Scholars and general readers alike will find illumination in Friedman’s gracefully written, historically thorough and copiously documented examination of how, and why, the Supreme Court plays its distinctive, and perhaps peculiar, role in American political history.

Hardcover: 544 pages

Publisher: Farrar, Straus & Giroux ( September 29, 2009 )

Item #: 55-8182

ISBN: 9780374220341

Product Dimensions: 6.0 x 9.0 x 0.0 inches

Product Weight: 31.0 ounces