Power to the People

Do we really want the Supreme Court to follow public opinion?

During the height of last summer's Senate confirmation battle over Supreme Court nominee Sonia Sotomayor, Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, took to the pages of USA Today to explain why he could not support President Barack Obama's pick. After arguing that "the American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases," Sessions declared, "I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism."

With his emphasis on "unelected" judges running amok, Sessions raised one of the modern right's most persistent complaints. For decades, on issues ranging from abortion and homosexuality to the death penalty and the rights of criminal defendants, conservatives have charged liberal judges with ignoring the will of the American people and imposing their own values in its place. Or as former federal appeals court judge Robert Bork put it in his 1996 book Slouching Towards Gomorrah, "the Supreme Court has usurped the powers of the people and their elected representatives."

So it might come as a shock for most conservatives to learn that the exact same arguments they're using against the judiciary today were first pioneered by the left-wing progressives of the late 19th and early 20th centuries. As New York University law professor Barry Friedman chronicles in his new book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, the progressives attacked the courts with a fervor matched only by today's conservatives.

Campaigning for president in 1912, for instance, Progressive Party candidate Theodore Roosevelt denounced the Supreme Court as a "super-legislature" and "a power which may give one man or three men or five men the right to nullify the wishes of the enormous majority of their ninety five million fellow-citizens." Similarly, the American Federation of Labor's Executive Council attacked the judiciary for "destroying government by law and substituting therefore a government by judges." (Compare that with former House Speaker Newt Gingrich's recent description of the Court as a "permanent constitutional convention," or former Republican Rep. Tom Delay's attack on the Court as a "judicial tyranny.")

For Roosevelt and his allies on the left, it was simply unacceptable for the courts to strike down popularly enacted legislation, such as the maximum working hours law for bakery employees nullified in Lochner v. New York (1905), or the minimum wage law for women voided by Adkins v. Children's Hospital (1923). In both cases, the Supreme Court held that the 14th Amendment right to liberty of contract trumped the government's arbitrary and unreasonable justifications.

In The Will of the People, Friedman argues that even when it comes to highly controversial cases such as these, the Supreme Court never gets too far ahead (or behind) public opinion. Thus the fierce progressive opposition to Lochner and Adkins helped create the Court's eventual support for Franklin Roosevelt's New Deal and the juggernaut of economic restrictions that followed.

Similarly, Friedman maintains that two decades of conservative backlash against the abortion rights decision Roe v. Wade (1973) led to the Court's decision in Planned Parenthood v. Casey (1992), which maintained Roe's core holding of the constitutional right to an abortion but imposed strict new limits on the practice better reflecting public opinion.

In other words, despite howls of "judicial supremacy" and "legislating from the bench" that have come from the left and the right, "the people" basically get their say in the end, either by tacitly endorsing a particular decision or by raising such a fuss that the Court changes course in the future.

It's certainly a plausible thesis, and Friedman gathers a good deal of evidence to give it weight, including statements from past and present justices revealing just how closely the Court monitors political developments. But as Friedman acknowledges in his conclusion, it also suggests that the Supreme Court may be failing to uphold its core constitutional responsibility. After all, the whole point of having a written constitution is to offer a permanent check against the shifting and fleeting desires of the majority. So if it's indeed true that the Court eventually just gives way to public opinion—as the legislative and executive branches typically do—how much independent meaning does the Constitution actually retain?

To put it another way, it's the job of the courts to protect the constitutional rights of unpopular minorities. Sometimes that means progressives don't get to interfere with capitalist acts between consenting adults, other times it means conservatives don't get to tell those consenting adults what they can or cannot do with their bodies. And it always means that the courts should be ready to stand athwart the majority yelling "stop!"

Damon W. Root is an associate editor at Reason magazine.