The people’s court
The Supreme Court and public opinion
Barry Friedman, (my) constitutional law professsor at NYU, recently published a book, The Will of the People, looking at the historical relationship between the Supreme Court and public opinion. He concludes that over time, the Supreme Court, on almost every issue, follows public sentiment. For instance, the Supreme Court blocked much some of FDR’s New Deal legislation, which had wide popular support, on the grounds that the regulations in question vested too much discretionary, indeed legislative power in the hands of the executive, distorting the constitutional balance. FDR threatened to pack the court with friendly appointees and the Court changed the doctrine. Friedman outlines numerous other examples where the Court made, modified, or didn’t make a ruling depending on popular support, which often relates to the level of support the President or Congress had for the law. It’s no suprise then that the Court has the highest approval rating of any branch.
The fundamental issue is that the Supreme Court cannot enforce its rulings. It says what the law is, but then it is up to the relevant federal or state executive to enforce the law. The Court is well aware of this and wary of repeating the New Deal affair, with a furious President and public. The Court’s power is normative and traditional rather than Constitutional. There is nothing in the Consitution that declares the Court to be the final arbiter on the meaning of the Constitution. John Marshall as Chief Justice granted that power to the Court in 1803.
There is a benefit to the Court’s temerity in the face of public opposition–it dissolves many of the counter-majoritarian, anti-democratic worries connected to the idea of unelected judges interpreting and declaring the law, as opposed to elected officials. The problem, however, is that one of the rationales for judicial review is that Supreme Court justices, due to their life-time appointments, indeed have the ability to be counter-majoritarian. This means they can protect the rights of minorities against the wishes of a possibly antognistic majority. And they can protect the rule of law, arguably, by not letting elected officials interpet the constitution however they want.
In last week’s The New Republic Friedman discusses some of these issues in relation to the Roberts Court.
-Jake
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- Guest post: Picking the next Supreme Court Justice
- Too smart for the supreme court?
- From the source
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