Barry Friedman, Author of The Will of The People
Q&A with Barry Friedman

Q. In a sense you could say that The Will of the People is about an enduring myth, isn’t that right?

A. Yes, it is.  For over two hundred years, the standard line about the Supreme Court has been that it is independent of the popular will; that by virtue of their life-tenured positions the Justices can do whatever they want.  Sometimes this is seen as a good thing — for example, the classic story of the judiciary as the defenders of constitutional and minority rights.  Think of Brown v. Board of Education, for example.  Often it is seen as a bad thing:  the Court is attacked for interfering with the popular will by striking down such things as abortion regulations, death penalty laws, gun control laws, federal statutes to protect the disabled or women.  Not to speak of the decision in Bush v. Gore.  What The Will of the People shows is that the Supreme Court has always been accountable to popular will, and that in the last fifty years or so has been tracking it pretty closely. 

Q. There’s something paradoxical about your argument though:  you claim the Supreme Court is following the popular will, yet it is always under attack.

A. True. The Supreme Court wields a certain amount of power in society, and people unhappy with its decisions are going to attack it.  What I found is that there are historical reasons why angry people and politicians claim the Court is trumping the popular will, when often this is not so.  This phenomenon is particularly prevalent in recent years.  Prior to the election of 2008, at least, it looked as though politics had been hijacked by extreme ideologues in both parties, and that political battles rarely reflected popular sentiments.  So, ironically, it was the Court that sat at the middle of American politics.  Whether that has changed or not—it’s too early to tell. 

Q. This book was a big undertaking.  Whatever got you started on it?

A. Its origins go all the way back to the beginning of my career as a lawyer and law professor.  I’ve had an unusual career in that almost since I graduated from law school—save one year clerking for a federal judge—I’ve both taught law and practiced law, and most of my practice has been constitutional litigation. In the academy the dominant theoretical question in constitutional law has long been how to justify the role of unelected and seemingly unaccountable judges in a country that otherwise calls itself a democracy.  In politics the discourse was as we’ve discussed—attacking judges for frustrating popular will.  But as a practicing constitutional lawyer, judges always seemed a lot more tuned in to mainstream public opinion than theory had it.  So, I was trying to see which was true. 

Q. What sorts of cases did you handle; how did they influence your thinking?

A.  A lot of lawyers who do constitutional litigation, especially pro bono litigation, as much of mine has been, tend to be litigating on one side of what gets called the “left” or the “right” of the ideological sphere.  I’m a bit unusual that way as well, in that I’ve done a fair amount of both.  I’ve handled all kinds of cases, from the death penalty, to free speech, to constitutional rules about interstate trade.  I spent about a decade doing abortion rights litigation, what we think of as a classic “left” position.  But I’ve spent a lot of time representing the interests of state and local government in federalism cases—what is often seen as an issue of the right.  In both areas, I saw the Court converging on what I sensed was the popular understanding of the issue.  Being involved in these varied areas, helped me see how pervasive the phenomenon was. 

Q. One really powerful thing emerges from your book:  the many fundamental ways the judges have changed the meaning of the Constitution over the last 200 plus years.

A. Well, I hope the book makes it clear that popular understandings of the Constitution changed over that time, and the courts simply ratified them.  If anything, the book gives the lie to those who claim the only faithful way to interpret the Constitution is by adhering to the original meanings. That simply runs square against what the American people think. They’ve really never bought into that idea, and it is implausible to imagine we’d ever return to constitutional understandings that were held in, say, the early 1800s. The federal government would have little power vis a vis the states, and the American people would have few of the rights they enjoy today.  But what the book makes clear is that it is very much the American people’s Constitution—not the judges’. 

Q. How should we feel about this exploded myth?  How should this new understanding of judicial review affect American politics?

A. That’s actually a good and a hard question.  Someone told me in dead earnest that everything in the book was dead right, but I should not have written it—that we were better off adhering to the myth of judicial independence. That we didn’t want people treating courts and judges like ordinary political actors, and that we certainly didn’t want judges thinking it was their job to act as a surrogate Gallup Poll.  While that’s all true enough, I still think it is important to understand how this vital part of American democracy actually works.  For example, social movements—which long have sought recourse in the courts — should understand that ultimately to succeed they have to win the hearts and minds of the American people.  That’s what’s happened, for example, with gay rights. It looks like the battle was won in the courts, but in fact the courts have merely ratified gains made in changing popular perceptions. 

Q. So, should politicians and activists stop attacking the courts for being out of line with the popular will?

A. That makes me smile. It doesn’t matter what I say, they won’t.  What ordinary Americans should understand, though, is that when these talking heads say the courts are out of line and inconsistent with democracy, that’s just an attack on what the judges are doing lately, not a statement of some longstanding truth.  It is just the case that because judges can strike down laws as unconstitutional, they becomepawns in our biggest social struggles.  But we should not lose sight of the fact that all the hollering is really about the social struggle, about the meaning of the Constitution, not about what role the judges are playing at the moment.