CONCLUSION: WHAT HISTORY TEACHES
"{AJ dialogue . .. with the people"
A
s the baton of one Chief Justice passed to another, it became clear
that while the story of judicial review is constantly evolving, it retains
an eerie familiarity. The same arguments for and against the practice
are offered time and again. There is a reason for this, an important one: these
arguments reflect the intractable tension between majority rule and constitutionalism
that is innate to the American system of government. Despite
the persistent claims of critics, judicial review has never been the source of
the problem. It merely reflects (and perhaps exacerbates) it. In a constitutional
democracy, minority rights are going to come into collision with majority
rule, whether there are judges to say so or not.I
Judicial review did evolve, though, and what most have failed to see is
that in its evolution, judicial review actually has become the American way of
mitigating the tension between government by the people, and government
under a Constitution. Our Constitution is almost a quarter of a millennium
old. It is unavoidable, and plainly apparent to all but those willfully blind to
the fact, that what the Constitution is understood to encompass has changed
over time in ways that are dramatic, sweeping, and often permanent.2 Although
these changes are reflected in judicial decisions, they are rarely initiated
there and in any event never would endure without the blessing of the
American people. Ultimately, it is the people (and the people alone) who must
decide what the Constitution means. Judicial review provides a catalyst and
method for them to do so. Over time, through a dialogue with the justices,
368 'CSb THE WILL OF THE PEOPLE
the Constitution comes to reflect the considered judgment of the American
people regarding their most fundamental values. 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.
THE ONCE AND FUTURE COURT
The long-awaited change in the membership of the Supreme Court finally
came in the summer of 2005. Sandra Day O'Connor retired from the Court.3
President George W. Bush nominated John Roberts to fill O'Connor's spot.
Roberts was a District of Columbia Court of Appeals judge who had served
in both the White House Counsel's and Solicitor General's offices. Deeply
conservative, he was widely admired, even among liberals, for his intellect
and ability. Before Roberts's confirmation hearings commenced, the ChiefJustice
died of the cancer he had battled for some time. Bush promoted Roberts,
picldng him to fill Rehnquist's center chair.4
Roberts's confirmation hearings as ChiefJustice were a cakewalk. Though
some viewed this as a "defeat for liberal advocacy groups," it was not clear their
hearts were really in it.5 Roberts, who had clerked for ChiefJustice Rehnquist,
was generally seen as an ideological swap. "It's hard to imagine a choice more
similar to Chief Justice Rehnquist than John Roberts," observed former Solicitor
General Walter Dellinger.6
Add to that the fact that Roberts's performance
during the hearings was "almost flawless," leaving everyone wowed.7
No sense going to war over Superman, especially if it might not matter to the
long-term direction of the Court. The Senate approved Roberts 78-22.8
'The pivotal appointment is the next one," declared Democratic senator
Dianne Feinstein.9
This nominee would replace Sandra Day O'Connor, who
had been the heart of the Court for more than a decade. "We are all living
now in Sandra Day O'Connor's America," Jeffrey Rosen wrote in his 2001 article
"A Majority of One." "Take almost any of the most divisive questions of
American life, and Justice O'Connor either has decided it or is about to decide
it on our behalf." 10 The person who filled this seat, many believed, could
decide the future of the Court for a long time to come. The moment was
compared with Justice Powell's retirement in 1987, which had led to the
contentious fight over Robert Bork. 11
George Bush's first nominee to the position to fill O'Connor's seat, his
counsel Harriet Miers, was savaged-by conservatives in his own party no
less. 12
"The decisive element," wrote Norman Dorsen, New York University
School of Law professor and old school liberal, "... was the opposition of
right-wing Republicans who concluded that she would not be reliable on the
CONCLUSION: WHAT HISTORY TEACHES C'!JY 369
'social' issues-including abortion, gay marriage and voluntmy end of life." 13
So Bush traded "a fight with his conservative base for a war with liberals,"
nominating a fan of the right, Judge SamuelAlito.14 In Alito, ~wrote lawprofessor
Andrew Siegel on the pages of 111e New Republic, liberals "may have met
their worst nightmare." 15 Once again, the airwaves and webwaves were filled
with hysteria. The left, for example, attacked an Alito decision in which he
voted to uphold the strip search of a ten-year-old girl on the scene of a drug
bust; the right responded with a commercial saying the '''left-wing extremists"
opposingAlito's nomination "may have found new allies, drug dealers who hide
their drugs on children." 16 It was business as usual in the confirmation wars.
Despite the intensity of the fight among activists, most of the countly
snored its way to Alito's confirmation. Polls showed a clear majority in favor of
putting him on the bench. Many Democrats voted against him, recognizing
the importance of the seat and under pressure from left-wing interest groups.
Still, Alito was confirmed 58-42, largely along party lines.17
Having "squandered"
the filibuster "on a series of ultimately insignificant lower court appointments,"
opined 111e San Diego Union-Tribune, the Democrats had given
us "a nominee who, though modest and affable, is a literal avatar of rightwing
jurisprudence." 18
As they had been at other times in the past, prognosticators were again
certain that there was a worldng conservative majority on the Court. The New
Yorh Times reported gloomily that addingAlito to the bench was "expected to
tilt the balance of the court to the right on matters like abortion, affirmative
action, and the death penalty, and partisans on each side said the outcome
would echo through American politics for decades." 19 A former Reagan Justice
Department official and conservative law professor crowed: "It is a Reagan
personnel officer's dream come true. It is graduation. These individuals have
been in study and preparation for these robes all their professional lives." 20
Time will tell how well this latest round of predictions about a conservative
Court proves out. The pundits' take on the Roberts Court seems to change
after evelY term.21
But the long-run fate of the Roberts Court is not seriously
in doubt; its decisions will fall tolerably within the mainstream of public opinion,
or the Court will be yanked back into line. Whether or not this is a good
thing-the question typically is obscured in passionate debates over the
proper role of judges in a democracy-iS far more difficult to say.
THE WILL OF THE PEOPLE
Throughout histOlY, contending forces have had basically two opposing
things to say about the Supreme Court. Those unhappy with the justices
370 'CD THE WILL OF THE PEOPLE
have accused them of interfering with the will of the majority.22 Call this
the threat ofjudicial review. Those supportive have emphasized the need for
judicial review to protect constitutional rights.23 Call this the hope.
It is about the threat of judicial review that we have heard the most over
the years. In his classic The Least Dangerous Branch, Alexander Bickel gave
this problem a descriptive but ungainly name, the "counter-majoritarian difficulty."
24 In theory, majority will is supposed to govern, yet judicial review
runs against that principle. Thus it is "counter-majoritarian." (The "difficulty"
represents the problem Bickel and other intellectuals have seen in tlying to
justifyjudicial review given its anti-majoritarian tendencies.)25 Bickel's concern
about judicial power has echoed throughoutAmerican history whenever
the Supreme Court has seemed to be exercising great authority.
Ironically, though, the expressions of both the hope and the threat of judicial
review rest on a common supposition: that the judiciary even has the
capacity of running contrary to the will of the majority. Those who express fear
of judicial review, who worry that judicial decisions trump majority will, presume
the judges could do so with regularity if they wished.26 Those who hope
that the judges will stand up against the majority, however, need to make precisely
the same assumption.27
As must certainly be clear by now, this underlying assumption, central to
both perspectives on judicial review, is deeply problematic. The people and
their elected representatives have had the ability all along to assert pressure
on the judges, and they have done so on numerous occasions. The accountability
of the justices (and thus the Constitution) to the popular will has
been established time and time again. To the extent that the judges have had
freedom to act, it has been because the American people have given it to
them. Judicial power exists at popular dispensation.
Shrewd witnesses to Roosevelt's fight with the Court understood this
relationship between judicial review and public opinion quite well. "No
appointive body of nine men can fly in the face of public opinion for too
long without provoking an answering attack," explained the journalists Alsop
and Catledge.28 Of similar view was Dean Alfange, whose book The
Suprelne Court and the National H7ill was one of several written to assist
"nonprofessional readers" in an "understanding of the relation of judicial review
to the processes of democratic government." "No institution," Alfange
wrote, "can survive the loss of public confidence, particularly when the people's
faith is its only support." For this reason, the Court has, "with but few
exceptions, adjusted itself in the long run to the dominant currents of public
sentiment." 29
CONCLUSION: WHAT HISTORY TEACHES d'0' 371
Those who doubt the accountability of the Supreme Court to the popular
will point to the recent assertiveness of the justices. They fret that the
Court has gone well beyond the accepted practice of judicial review and insisted
upon final, if not exclusive, authority over the meaning of the Consti-
tution.3D
There certainly are hints of this in some of the Rehnquist Court's
decisions. In one instance, the late Chief Justice stated unequivocally, as have
his colleagues in other instances, that the Congress and President can have
their views about the Constitution, but the Supreme Court is the "ultimate
expositor of the constitutional text." 31 It is these sorts of assertions that have
led to broad attacks from the left and the right.
In off-the-bench remarks, however, several of the justices have been quite
candid in acknowledging the Court's 'dependence on popular support. In his
own early days on the Supreme Court, Justice Rehnquist was asked whether
the justices are able "to isolate themselves from the pressure of public opinion."
His response was that "we are not able to do so and it would probably
be unwise to try." 32 For many years Justice Sandra Day O'Connor sat in the
middle of the Court. Hers were the votes that led the Court to the center of
public opinion on such controversial issues as abortion and affirmative action.
Justice O'Connor was quite frank in explaining that "[wle don't have standing
armies to enforce opinions." Instead, "we rely on the confidence of the
public in the correctness of those decisions. That's why we have to be aware
of public opinions and of attitudes toward our system of justice, and it is
why we must try to keep and build that trust." 33
Not only have the justices aclmowledged the importance of public opinion,
but, as we have seen time and time again, their decisions plainly reflect
the tug of public views. Some express concern about judicial hegemony nonetheless,
arguing that of late the people have become complacent.34 This is
a dubious claim. Anti-Court activism has been rampant to such a degree in
recent years that the justices and others have gone on the stump to protect
judicial independence in the face of particularly strident criticisms and legislative
measures they view as a threat.35 The legal academy likewise responded:
in 2005, 75 percent of the nation's law school deans signed a letter opposing
congressional calls for judicial impeachment of activist judges.36 Yet none of
the attacks on judges has gotten very far, and it is unlikely that complacency
is the reason. The weight of the evidence seems to support a quite different
reading, that by and large, for now, the people are simply content with the
system ofjudicial review. Perhaps more than ever before, Supreme Court decisions
run in the mainstream of public opinion. If the people were unhappy
with the courts, they could, as they have in the past, signal that discontent.
372 '6b THE WILL OF THE PEOPLE
Yet polling data indicate widespread satisfaction with the judiciary, in sharp
contrast with other branches of government.37
THE POLITICAL COURT
While the close relationship between popular opinion and judicial review
goes a long way toward addressing Bickel's "counter-majoritarian difficulty,"
it actually raises a question that is far more profound and tends to receive
far too little attention. If any worry seems legitimate, it is that the "hope" of
judicial review too often proves effervescent, that the justices kowtow to
public opinion and pay insufficient heed to the traditional role of judicial
review in protecting minority rights.38 Even conceding for the moment the
velY odd fact that the Court of late seems to be doing a better job than the
Congress in meeting public expectations, it is still difficult to argue that
such a state of affairs justifies judicial review. Is it really the role of the Supreme
Court only to rubber-stamp public opinion?
Just as the Court has been criticized for interfering with the popular
will, so it has been condemned equally strongly throughout history for failing
to stand up for the Constitution when necessity demanded it. Take, for
example, what might be the Court's greatest single failure (at least from this
perspective) in all its histOlY, the decisions in the Japanese internment cases.
During World War II, more than one hundred thousand American citizens of
Japanese descent (along with many other noncitizen Japanese) were herded
from their homes on the West Coast and locked in detention camps in the
middle of the country.39 There was virtually no evidence of a security risk;
the stark racism behind the internment later became clear.40 The question
of the internment's constitutionality came to the Supreme Court in the later
days of the war, when its needlessness was already somewhat apparent, and
in any event its constitutional difficulties should have been. Nonetheless,
the justices upheld the acts of the President and milit31Y officials in decisions
that are hard to justify intellectually or accept emotionally.4! In time, the
countlY rightly tripped over itself apologizing. Many today would pick Dred
Scott as the Court's greatest gaffe, but at least in that case the justices thought
they were standing up for minority rights, albeit the property rights of slaveholders.42
It is difficult to understand Korematsu, the most prominent of the
internment cases, as anything but stark capitulation to the decisions made
by military and political authorities.43
Although no work of scholarship has really attempted to come to grips
with what motivated the justices to decide Korematsu as they did, the currents
of public opinion against the interned Japanese came to be very strong.44
CONCLUSION: WHAT HISTORY TEACHES c0' 373
Gallup did remarkably little polling on the question, which is itself telling
of how little most people really seemed to care what was going on.45 But the
answers Gallup did elicit are a little chilling. In 1942, Gallup asked whether
those interned inland should be allowed to return at the end of hostilities. By
a 48-34 percent margin, the answer was no (the rest had "no opinion"). In a
follow-up of "no" voters on what should happen, the most popular responses
advocated throwing them out of the country or sending them back to Japan,
and 3.8 percent indicated that they should just be killed.46 The Los Angeles
Times issued an editorial praising Himba)'ashi, a predecessor to the Korematsu
decision, stating that the decision would help stymie "[a]gitation for
the return of Japs to the Pacific Coast.",47 It is not very encouraging to think
the Supreme Court might be responsive to this sort of public opinion.
What we ought to care deeply about, what we ought to be asking, is how
much capacity the justices have to act independently of the public's views,
how likely they are to do so, and in what situations. Is the Court even capable
of standing up for constitutional rights when they are jeopardized by the majority?
Imagine the Court as tethered to public opinion by a bungee cord. The
justices plainly have a certain freedom of movement. But what determines
how far the Court can move away from the public before it is snapped back
into line?
These are questions for which our understanding is remarkably impoverished,
an embarrassing fact, given that we are more than two hundred years
into our national experiment with judicial review and democracy. Far too much
time has been spent and ink spilled debating whether the judiciary is beholden
to or independent of majority will (even among those who should know better).
Surprisingly little is devoted to analyzing where between these two poles
the answer rests and how the system of judicial review actually works.
The failure to devote adequate attention to these important questions
traces back to a long-standing disagreement between political scientists and
legal scholars over whether law or politics motivates the Supreme Court's
decisions, one dating back to the aftermath of Roosevelt's Court-packing
plan.48 In recent years, fortunately, scholars in both law and politics have begun
to move past this silliness. Plainly what the justices do is law, and it does
not detract from this point to acknowledge that they have a certain amount
of discretion, even a large amount of it. But politics plainly influences the
Court as well, in numerous ways ranging from the appointments process to
responsiveness to public sentiments. Recent scholarship endeavors to say
something tangible about the Supreme Court's responsiveness to (and independence
from) popular politics, about what decides cases, and how all this
works.49 \t\That we know is tentative; it may amount to little other than an
374 15):) THE WILL OF THE PEOPLE
agenda for further research. But if we can at long last move past the question
of whether the justices are influenced by popular opinion, a question whose
only conceivable answer is yes, we can at least start to tackle the really meaningful
question of when and how the justices are free to stand up to the popular
will in the name of the Constitution.
THE ALIGNMENT OF THE JUSTICES WITH POPULAR OPINION
Understanding how much freedom of movement the Supreme Court enjoys
requires answering a prior question: Why might the justices' decisions come
into line with public opinion in the first place? Only by examining what motivates
the justices to listen to the siren call of public opinion can we assess
how beholden to it that they are likely to be.50
Undoubtedly, the fact that Presidents select Supreme Court justices and
the Senate confirms them plays some role in ensuring that the Court heeds
the Cly of public opinion.51
But it probably does not explain nearly as much
as one would think. Contrary to folk wisdom, Presidents can usually get the
sort of justice they want; however, they rarely are driven to appoint justices
who capture the mainstream of popular thought.52
Only recently have Presidents
become so single-mindedly focused on the ideology of their appointees,
and in doing so they often have proven beholden to extremists in their own
party.53 Even if a justice is appointed as a perfect proxy for public opinion,
things may not remain that way for long. Historically, a justice has retired
about evelY two and a half years, putting each of them on the Court on average
for more than a generation, though that period of service is going up as
justices are appointed younger and live longer.54 In the years between appointment
and present decisions, justices may experience "ideological drift," which
is to say their views may move right or left. Even if they stick to their gunsand
evidence suggests most of them do drift by the tenth year on the benchthe
nature of the issues coming to them may make their views outmoded.55
The appointments process, standing alone, cannot guarantee responsiveness
to public opinion.
On the other hand, the fact that the justices are only human may say a
lot for why responsiveness to public opinion occurs. The justices are no less
vain than the rest of us, and it is human nature to like to be liked or even
applauded and admired. Part of being a judge means getting used to the fact
that you always are disappointing one of the parties before you. The Supreme
Court is a bit different, though: it decides issues as much as individual controversies,
and the justices' decisions regularly are front-page news and the
subject of numerous editorials. Some justices appear to play to immediate
CONCLUSION: WHAT HISTORY TEACHES c6' 375
public opinion. Chief Justice Chase desperately wanted to be President.
William O. Douglas liked the image of populist champion.56
Many others
are undoubtedly affected by what is said about them.
Aligning the Court with public opinion does not require many justices
on the Court at any time to be sensitive to public opinion. The Court will always
have its extremists. But the justices make decisions by majority vote,
giving the "median" justice, the justice in the middle of the Court, enormous
power. Recent studies suggest that when it actually comes to drafting opinions,
as opposed to deciding the outcome of cases, the authority of the median
may not be all it appears. Still, it is a rare (and likely far from significant)
case in which the extreme justices are going to be calling the shots. 57
The most telling reason why the justices might care about public opinion,
though, is simply that they do not have much of a choice. At least, that is, if
they care about preserving the Court's institutional power, about having their
decisions enforced, about not being disciplined by politics. Americans have
abolished courts, impeached one justice, regularly defied Court orders, packed
the Court, and stripped its jurisdiction. If the preceding history shows anything,
it is that when judicial decisions wander far from what the public will
tolerate, bad things happen to the Court and the justices.
One might wonder why given the nature of the sticks used to beat up on
the Court for its decisions, the opinion of the public matters, as opposed to,
say, that of the President or the Congress. Political scientists in particular
tend to focus on the institutions of government, rather than the people at
large.58
But the United States is a democracy, and the will of the people still
prevails, at least on the big issues. Of course, the justices have to pay attention
to what the Congress and the President are saying.59 But they must do
more. Typically, there is some slack between what the governed want and
what the governors provide, but that slack closes up when issues rise to the
top of the public's consciousness.60 When the public has a view, its elected
officials tend to heed it. The Court has to be attuned to aroused public opinion
because it is the public that can save a Court in trouble with political
leaders and likewise can motivate political leaders against it.
Astute outside observers of the American system have long noted the
influence of public opinion on the Supreme Court. In Democracy in America,
the French intellectualAlexis de Tocqueville described the Supreme Court's
power as "immense, but it is the power springing from opinion." It is no
wonder that having made his tour of the United States in 1831, as the Cherokee
conflict raged and defiance of the Court's decisions was the constant
talk of politics, Tocqueville qualified his remarks by saying the justices retain
their authority "so long as the people consent to obey the law; they can
376 'CD THE WILL OF THE PEOPLE
do nothing when they scorn it."61 James Bryce was a British diplomat and
scholar who spent considerable time here and wrote a multivolume work on
the United States. Like Tocqueville, he concluded: "The Supreme Court
feels the touch of public opinion." Blyce was observing the Court's response
to Granger legislation firsthand, which is what led him to recognize that
"[o]pinion is stronger in America than anywhere else in the world, and the
judges are only men." If not entirely comfortable with the arrangement, Lord
Bryce did not see that the judiciary had any choice. "To yield a little may be
prudent, for the tree that cannot bend to the blast may be broken."62
Skeptics might point out-in fact some do-that it has been a long time
since the justices were disciplined in any significant way.63 Court packing
disappeared in 1937; impeaching the justices never really got off the ground.
The Jenner-Butler jurisdiction-stripping measure in 1957 failed. True, Congress
recently stripped the Court of jurisdiction to hear the claims of Guantanamo
detainees, but it was a naked political ploy that the justices (those
appointed by Republicans and Democrats alike) swatted away like a gnat.64
Indeed, if anything seems paradoxical, it is that in recent years, as these weapons
to control the justices look to have been ruled off the table or lost their
force, the Court has come most directly into line with public opinion.
The explanation for this paradox is that it has taken the Court and the
public some time to learn how their relationship might work; now that it is
understood, violent upheaval is no longer necessary.65 What would transpire
over the course of two hundred-plus years was hardly obvious at the outset
to either the justices or those who would control them. To the contrary, history
has been full of misjudgments and corrections.66 It took the Court quite
a while to understand the limitations that motivated public opinion imposed
on its freedom of movement. By the same token, it took the public several iterations
to assess how it felt about disciplining the Court, and in what ways.
The relationship between the people and the justices developed slowly over
time, as in any other marriage. As in any other marriage too, a few serious
dustups were to be expected at first, until the rules got ironed out.
Now that the justices and the public understand how things work, the
system tends to rest in a relatively quiet equilibrium.67 Political scientists
call this anticipated reaction.6s The justices don't actually have to get into
trouble before retribution occurs; they can sense trouble and avoid it. The
people do not actually have to discipline the justices; if they simply raise a
finger, the Court seems to get the message. If one wants the relationship to
continue, and there is evelY indication the American people and the justices
want this one to, then meeting expectations becomes the norm, and it does
not take as much as it used to in the way of repercussions.
CONCLUSION: WHAT HISTORY TEACHES C!S' 377
THE INDEPENDENCE OF THE JUSTICES
None of this is to say the Court will always be in line with public opinion.
The justices neither need to, nor necessarily do, respond to what the public
wants. To name a couple of relatively recent examples, the Court's school
prayer and flag burning decisions have been wildly unpopular.69 If anything,
public opposition has seemed to make the justices only more resolute on these
issues. There are a variety of factors that protect the justices' independence
and allow them to deviate from popular opinion. Even these suggest, however,
that over the long term on the important issues the people are going to
have their way.
One obvious candidate as a safeguard for the Supreme Court's independence
is the sheer difficulty of enacting a law to punish the justices. The
American separation of powers system is designed to make it difficult to pass
legislation, requiring majorities in two houses of Congress and the President's
signature on the bill. But it is not just the President who has a "veto"; so too do
the relevant congressional committee chairs, who can stall hearings or avoid
them altogether. (Emanuel Celler, a New York representative who served in
the House for half a century, stalled consideration ofany response to the school
prayer decisions for two years')?o There is a certain range-what political
scientists describe as the gridlock interval-in which it is hard to overturn
any policy because of the difficulty in mustering legislative support.7l
Still, as we have already seen, and as political scientists seem to acknowledge,
the force of mobilized public opinion can be a great way of overcoming
congressional gridlock,72 (Political pressure ultimately forced Celler to hold
hearings on the school prayer amendment.)?3 Besides, it does not require enacting
legislation to exercise one of the biggest sticks against the Court: defiance.
The states-or the people of the states-have done quite well on their
own. Witness here the widespread defiance of the r820S to which Tocqueville
plainly was alluding, the "massive resistance" in response to Brown v. Board
ofEducation, and the low-grade evasion that has afflicted the school prayer
rulings. If the Court engenders widespread resistance, it threatens its legitimacy;
even lower levels of defiance eat away at its credibility. No judge wants
to be defied, and the threat of a harsh counterreaction has certainly given
some pause. The justices tempered the remedy in the school desegregation
cases precisely because they feared defiance.
The Court also has a better chance of going its own way in cases that are
of low public salience. The Court decides lots of cases, and only so many of
them can make it to the public consciousness. In others, the Court can fly
under the radar, unnoticed. The Roberts Court has decided a large number
378 '6b THE WILL OF THE PEOPLE
of "pro-business" cases, often decided by large margins, if not unanimously.74
Though this has gotten some attention in the press, for the most part the
media's focus has been on certain high-profile cases like those involving abortion,
pupil assignment to schools, gun control, and the like.75
Yet, again, the justices need be mindful that any decision or string of decisions
could suddenly become an issue of great moment. The Supreme
Court decides few enough cases, and the decisions are of sufficient import,
that interested eyes always are watching the docket. Lest they forget this,
there are periodically painful reminders, such as the enormous negative (and
likely unanticipated) public reaction to the Kelo case regarding government
taking of private property for ostensible public uses.76 To the extent the probusiness
decisions start to step on enough toes, there will be coverage.
It also is sometimes the case that the justices listen to elite voices, rather
than that of the average person. This is a frequent complaint against the Court,
and it may well explain the school prayer and flag burning decisions. To say
that the justices like to be popular is to fail to ask, "With whom?" If a justice
is in tune with his peer group, and his peers have elite views not shared by
most of the country, the justice will seem to be going his own way.77 Thus
even those justices who appear not to care a farthing for what the public
thinks may actually just have a particular public they play to. Antonin Scalia
delights in being controversial; as a matter of constitutional theory and of
personality, winning plaudits in the daily press plainly is not what he thinks
he is supposed to be doing.78 But Scalia is plenty popular with his colleagues
in the Federalist Society.79 One infers that satisfying this particular "base"
sustains him well enough.
The cases in which the Supreme Court seems to deviate from public
opinion most often are those involving the First Amendment, which could
be explained because the First Amendment has its own special constituency,
the press. Journalists love the First Amendment for obvious reasons (it protects
freedom of the press).80 The justices are more likely to be attacked in
print (or praised) for their decisions in First Amendment cases than almost
any other.8! But journalists also may provide the justices with a distorted
view of public opinion. The fondness of the media may explain the Court's
particular willingness to stand tough on certain First Amendment rightssuch
as for pornography and against school prayer-even when the country
generally expresses contr31Y views.
Sometimes the justices look to be independent when they are simply
poorly informed about popular preferences. While elite views provide one
example of this, another important one is provided by the novel case.82 When
the justices approach a matter for the first time, they have a decent chance
CONCLUSION: WHAT HISTORY TEACHES cEY 379
of misreading public opinion even if they seek to be attuned to it. The public
may not have considered a matter fully, public opinion may not have jelled,
or the justices may simply lack good information. And the justices are most
likely to get in trouble with the public when a case presents itself only once,
or in one short period of time, so that they lack the opportunity to ensure
that their decisions converge with pu.blic views. Dred Scott and Korematsu
both might present examples of the problem the justices face with one-off
issues.83
Ultimately, though, the best explanation for the justices' independence
may simply be that the public decides to grant it to them. Although the public
seems to insist on the Court's being relatively in line on most issues, "relatively"
and "most" are the key words here. When it comes to public support
for institutions like the Supreme Court, political scientists distinguish two
types, "diffuse" and "specific" support.84 Specific support is the obvious one;
people stand behind the Court (or other institutions) when they like its
specific decisions and desert it otherwise.85 "Diffuse" support, on the other
hand, refers to the idea that there is enough institutional support for the
Court that people will tolerate a certain amount of deviation, a number of
decisions they dislike.86 In short, diffuse support is the measure of the slack
the Court has togo its own way on some issues.
It is not entirely clear why diffuse support would exist. Perhaps the Court
has simply been around a long time, and people resist change to long-standing
institutions even if they are angry with them. At least one study shows that
the longer a country has a high court, the more diffuse support it enjoys.87
Perhaps nobody really wants a Supreme Court that simply panders to majority
opinion. Maybe people figure that although they do not agree with particular
decisions, down the road they may want the majority to refrain from
attacking the Court when it sides with their unpopular cause.88 Some people
may welcome the Court's unique perspective. Theories abound; all have some
supporting evidence, and none is conclusive.
History provides "anecdotal" evidence that diffuse support exists. Take
Bush v. Gore as an example. Many people loathed that decision and thought
it was infected by partisan bias, but polls showed that support for the Court
quickly returned to where it had been.89 Yet it turns out to be extremely difficult
to measure the extent of diffuse support. This is too bad. Ultimately,
diffuse support may be the measure of the length of the Court's leash. Studies
regularly show the existence of diffuse support, but the tests used by
those studies are problematic. Surveys ask people whether they would support
responses such as packing the Court or stripping its jurisdiction if the justices
issued unpopular decisions.9o It's the "if" that is tricky here; the volatil-
380 'CD THE WILL OF THE PEOPLE
ity in polling measures during the Court-packing fight of 1937 suggests it is
difficult for people to reach a firm conclusion on disciplining the Court
even when the chips are down. When they are not, it is all a bit too hypothetical
to trust what people say.91 The bottom line is that to the extent the
Court can and does deviate from public opinion, it may be for no other reason
than that the public allows it to, but we do not know nearly enough about
popular preferences in this regard.
The Supreme Court's ultimate reliance on public dispensation calls into
question the much-vaunted separation between "law" and "politics." When
people speak of holding the two apart, what they typically mean is that judicial
decisions ought not to be influenced by political considerations. In particular
as it matters to this discussion, judges should not simply give in to
the will of the mob.92
One can see the concern over the demarcation between law and politics
in the justices' reaction to the annual pilgrimages to the Supreme Court in
support or protest of the 1973 abortion rights decision in Roe 11, Wade. Some
years these marches have reached into the tens and even hundreds of thousands.93
The justices' anxiety about the crowds outside their windows burst
into public view in the 1992 decision in Planned Parenthood 11, Casey. Justices
O'Connor, Kennedy, and Souter's plurality opinion said that in light of the
"sustained and widespread debate Roe has provoked," it was all the more
important that the Court's decisions be seen "as grounded truly in principle,
not as compromises with social and political pressures."94 Though Justice
Scalia dissented on the merits in Casey-he favored overruling Roe-he too
agreed on the need to separate judicial decision malting from political pressure.
"How upsetting it is," he wrote, "that so many of our citizens ... think
that Justices should properly take into account their views, as though we were
engaged not in ascertaining objective law but in determining some l<ind of
social consensus." 95
In theory, this desire to separate law and politics is an admirable one.
Certainly we do not want trial judges who are deciding the fate of individual
cases to be swayed by aroused community sentiments.96
Studies showing that
the chance that a death sentence will be upheld increases as state high court
judges come closer to their elections are simply nauseating.97 There has to be
some room for law to decide which way the chips fall without the immediate
pressure of public opinion.
Yet the instinct to keep politics entirely separate from decisions about
constitutional law is plainly impossible with regard to the Supreme Court. It
simply is the case that the judiciary's capacity to give the Constitution meaning,
to protect minority rights, always has been limited by popular support
CONCLUSION: WHAT HISTORY TEACHES c0' 381
for those decisions. The Dred Scott justices believed they were protecting
constitutional rights; ultimately that judgment fell to contrary popular opinion
and America's bloodiest war. Consensus was a long time developing, but
when it did, the justices' interpretation of the Constitution gave way to the
popular will. The justices in Brown v. Board of Education argued they were
protecting constitutional rights, but once again it was evolving national views
that supported the Court's judgment and enabled its enforcement. The decisions
of the justices on the meaning of the Constitution must be ratified by
the American people. That's just the way it is.
THE DEMOCRATIC CONSTITUTION
This brings us back to the extraordinatily important question with which we
began: If the Supreme Court ultimately is accountable and responsive to
the will of the people, doesn't that threaten the whole idea of constitutionalism?
If the judiciary always, or even often, trumped the popular will, we
would have a crisis of democracy. But if the facts tend to the opposite, what
is there to preserve the Constitution against the majority?
On "I Am an American Day" in 1944, Judge Learned Hand gave an address
in Central Park that became an instant classic. His words were eloquent,
his topic "The Spirit of Liberty." In his address, Hand wondered
whether "we do not rest our hopes too much upon constitutions, upon laws,
.and upon courts" to preserve the spirit of liberty. Calling these "false hopes,"
Hand insisted that "[l]iberty lies in the hearts of men and women; when it dies
there, no constitution, no laws, no courts can even do much to help it." But
"[w]hile it lies there it needs no constitution, no law, no court to save it."98
Hand's words, though heartfelt and gripping, seem oddly out of place for
a man who served so long on the federal bench. Courts and the Constitution
have nothing to add? Hand was an old-line progressive who saw courts at
what he believed was their worst, and he never got over it. But was he right
to be so pessimistic?
Hand's error, like that of many others, was in focusing solely, or even primarily,
on the role courts play in the process of judicial review and constitutional
interpretation. Courts say they are the last word, and many believe
them. The fight becomes whether courts should have this power or not.
What matters most about judicial review, however, is not the Supreme
Court's role in the process, but how the public reacts to those decisions. This
is the most important lesson that history teaches. Almost everything consequential
about judicial review occurs after the judges rule, not when they
do. Judges do not decide finally on the meaning of the Constitution. Rather,
382 15):) THE WILL OF THE PEOPLE
it is through the dialogic process of "judicial decision-popular responsejudicial
re-decision" that the Constitution takes on the meaning it has.
To say that the Supreme Court follows popular opinion, or even that it
should, is hardly to say that the Court ought to be responsive to every passing
fancy, to the immediate demands or wishes of the American people.99
Even those leading Americans who have called on the Supreme Court to be
responsive to the people have distinguished between the passions of the
moment and some deeper sense of the popular will. "What we should ask of
our judges," wrote \l\Toodrow Wilson several years before becoming President,
"is that they prove themselves such men as can discriminate between the
opinion of the moment and the opinion of the age." Theodore Roosevelt, who
spent much of his career arguing that judges should not interfere with the
people's will, said much the same. He distinguished between the "permanent
popular will," which he said judges should follow, and "popular opinion at the
moment," which a "good judge" should not. IOO
The problem is that there is something romantic, and plainly unrealistic,
about asking judges to distinguish on their own between the "permanent"
will of the people and the "opinion of the moment." Judicial robes are worn
by ordinary mortals, typically political appointees. It is asking a lot of them to
imagine they are any better than the rest of us in evading the pressures of the
moment in favor of some deeper, more enduring set of values. The fact that
Supreme Court justices have lifetime appointments provides some insulation,
but history suggests that it often is not enough. Decisions like Korematsu
indicate the difficulty with putting one's faith in the notion that judges will
be able to perceive the difference between what is momentarily popular and
what is ultimately right, let alone that those judges will be able to hold the
line against an aroused citizemy.
The magic of the dialogic system of determining constitutional meaning,
however, is that it works whether the judges rule properly or not-precisely
because everything important happens after they render their decision. 101
What histOlY shows is assuredly not that Supreme Court decisions always are
in line with popular opinion, but rather that they come into line with one
another over time. There was a velY good argument that the Supreme Court's
decision in Roe 17. 'Vade was consistent with social trends, but still, it attracted
only plurality support in polls, and there was profound disagreement with the
Court's conclusion that had not received an extended public hearing. By the
time the Court handed down its decision in Planned Parenthood v. Casey,
however, which watered down Roe in important ways and which-all polls
and pundits agreed-was remarkably in line with popular opinion, a generation
of vibrant public debate had occurred.
CONCLUSION: WHAT HISTORY TEACHES OS' 383
When it comes to alignment with popular opinion, the justices will often
seem to blow it badly the first time out on an issue, precisely because
the public has not yet really made up its mind. The death penalty decision in
Furman v. Georgia makes this clear. The same phenomenon was apparent
during the New Deal. Although the early decisions striking down New Deal
measures were met with some dismay, the President's criticism of the Court
apparently angered the citizemy more. Public opinion was unsettled. It clarified
quicldy, though, and when it did, the Court had little choice but to come
into line. In fact, if there is any worry about the New Deal, it is that with a
big gun pointed at their head, the justices came into line too qUicldy. (If there
is any reassurance, it is that the New Deal "settlement" was tested time and
time again thereafter and endured by and large in the public mind.)102
It is through the process of judicial responsiveness to public opinion that
the meaning of the Constitution takes shape. The Court rules. The public
responds. Over time, sometimes a long period, public opinion jells, and the
Court comes into line with the considered views of the American public.
Indeed, it turns out that one of the most important features of Supreme
Court decisions interpreting the Constitution is that they are "sticky," which
is to say that they are difficult to change or get around. Either the people
must amend the Constitution, or they must persuade the justices to change
their minds. This is what bothers critics of judicial review, what accounts
for the concern about the "counter-majoritarian" nature of the practice.103 But
it turns out there is a certain virtue in this stickiness; it plays an essential
role in separating out the considered "constitutional" views of the American
people from passing fancy. Precisely because it is difficult to get around constitutional
decisions, the debate that surrounds them proceeds differently
from our other political debates. If judges interpret a statute in an unpopular
way, Congress can change it. When a decision is put on constitutional
grounds, it takes greater mobilization, and often more time, to develop the
political will to change it.104
One of the most valuable things that occurs in response to a Supreme
Court decision is bacldash. People who disagree with the decision tend to
react more strongly than those who agree, and they dissent in any variety of
ways. If over time those dissenters muster strong support, then, and only
then, the Court tends to fall into line with the dissenting opinion. For this
reason, social movements play an enormous role in shaping public constitutional
understandings. lOS
It is apparent time and again that what the Supreme Court responds to
most often is the sustained voice of the people as expressed through the
long process of contesting constitutional decisions. This is what Woodrow
384 1S'D THE WILL OF THE PEOPLE
Wilson and Theodore Roosevelt were calling for when they insisted that the
Court should follow the "permanent popular will," when they asked the Court
to distinguish the "opinion of the moment" from the "opinion of the age." The
system works not because the justices are solons with a special capacity for
distinguishing between the two but because separation occurs through the
regular process of decision, response, and redecision, as it plays out over
time.
This give-and-take between the courts and the people is of the utmost
consequence, for through it the substance of constitutional law itself is
forged. Supreme Court justice Ruth Bader Ginsburg noted this phenomenon,
explaining that judges "do not alone shape legal doctrine." Rather, she
observed from experience, "they participate in a dialogue with other organs of
government, and with the people as well." 106 Justice O'Connor made much
this same point: "[RJeal change, when it comes," she said, "stems principally
from attitudinal shifts in the population at large. Rare indeed is the legal
victOly-in court or legislature-that is not a careful by-product of an emerging
social consensus." 107 As we have seen, Owen Roberts, the swing vote on
the Court Franldin Roosevelt attacked, conceded years later, once he was
off the bench, that "it is difficult to see how the Court could have resisted
the popular urge" for change in the Court's doctrine.!Os As judicial rulings respond
to social forces, and vice versa, constitutional law is made.
The making and enforcing of constitutional meaning thus are the result
of an extended dialogue between and among the courts and the American
people. Learned Hand had it right, and wrong, at the same time. Unless the
people possess the spirit of liberty, constitutions are parchment barriers and
courts are false hopes. But perhaps the central function of judicial review
today is to serve as the catalyst for the people to take their Constitution seriously,
to develop their constitutional sensibilities, in the hope that they will
adhere to those sensibilities when the chips are down. \!\Then Hand spoke,
he was echoing in some fashion the words and worries of a famous mentor
of his, James Bradley Thayer. At the World's Fair in Chicago in r893, Thayer
gave an address that became a classic, one of the most famous constitutional
tracts of all time. In it, Thayer worried about the power of judicial review.
His concern was that if judges took on this task too aggressively, the people
(or at least their representatives) would abandon it to them and thus lose
their own constitutional sensibility. The people, he feared, "not being thrown
back on themselves, on the responsible exercise of their own prudence,
moral sense, and honor, lose much of what is best in the political experience
of any nation." 109
CONCLUSION: WHAT HISTORY TEACHES c6' 385
American politics has been a constant, unrelenting process of constitutional
contestation and dispute. Though Hand's and Thayer's worry is a reasonable
one, it has also proven to be false. It is difficult to know what our
society would be like without judicial review, as we have rarely lived without it.
But it is impossible to spend any time looking at the television, the Internet,
or a newspaper and miss the fact that we live in a constitutional democracy,
that the terms of our Constitution are constantly being debated and discussed.
The Constitution is central to American political discourse.
Ultimately, Thayer's and Hand's instinct is correct: we have nothing but
ourselves to fall back upon. But it is wrong to claim, as many have, that the
judges have stolen the Constitution from us. Judicial review is our invention;
we created it and have chosen to retain it. Judicial review has served as a
means of forcing us to think about, and interpret, our Constitution ourselves.
In the final analysis, when it comes tCl the Constitution, we are the highest
court in the land.