The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

Barry Friedman holds the Jacob D. Fuchsberg Chair at the New York University School of Law. He is a constitutional lawyer and has litigated cases involving abortion, the death penalty, and free speech. He lives in New York City.

In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history’s most contested presidential elections never being elected themselves. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority.

In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices’ jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion.

Friedman's account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.

"In The Will of the People, his thought-provoking and authoritative history of the Supreme Court’s relationship to popular opinion, Barry Friedman, who teaches at the New York University School of Law, writes: 'The true significance of 1937 requires no hidden clues; it was plain for all to see. The American people signaled their acceptance of judicial review as the proper way to alter the meaning of the Constitution, but only so long as the justices’ decisions remained within the mainstream of popular understanding.' Justice Owen Roberts, who executed the 'switch in time that saved nine' by changing his vote from one minimum wage case to the next, would later acknowledge that 'it is difficult to see how the court could have resisted the popular urge' for change. That observation captures Friedman’s thesis about the influence of public opinion on the Supreme Court. He sees the justices and the people as partners in a 'marriage' that bypasses the elected legislature and the president . . . Friedman’s contribution to this discussion is the breadth and detail of his historical canvas, and it’s a significant one. He ends his book with a series of riveting questions. '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,' he writes. 'Is the court even capable of standing up for constitutional rights when they are jeopardized by the majority?' This line of inquiry treats skeptically the notion that law is separate from politics. Friedman is right that the question is worthy of much more study. So is the distinction political scientists draw between 'specific' support for the court based on particular decisions, and 'diffuse' support based on general respect for the institution. The second kind is harder to quantify, but as Friedman argues, it 'may be the measure of the length of the court’s leash.' Often, especially in our time, it is the response to judicial rulings and the justices’ next moves that determines the shape of constitutional law. Roosevelt may have been foiled in his attempt to control the court directly. But he was prescient in insisting that his interpretation of the Constitution counted, too. And, as Friedman shows, so does ours."—Emily Bazelon, The New York Times Book Review

“Friedman’s book admirably manages to distill more than two hundred years of constitutional history into a coherent narrative that attends both to continuity and to change. And a distressingly small number of legal academics can match his lucidity or his ability to turn a phrase.”—Justin Driver, The New Republic

“We think of the Supreme Court’s constitutional decisions as lofty, lonely, unchallengeable. But in truth they are part of a dialogue with public opinion and political leadership—and in the long run the Court does not stray far from the public. That is the convincing conclusion of Barry Friedman’s stunning, fascinating history.”—Anthony Lewis, author of Gideon’s Trumpet

“Deeply informed by history and political science, The Will of the People offers a fresh and insightful look at the most profound problem in American constitutional thought: how and whether the Supreme Court may thwart the will of a democratic majority. With elegance, clarity, and patience, Friedman tells the story of how the Court has gauged public opinion: now giving in to its power, now shaping it, and even occasionally standing up to it. No one who cares about the development of the Supreme Court—or the Constitution—should miss this book.”—Noah Feldman, Bemis Professor of Law, Harvard Law School, and author of Divided by God and After Jihad

“In this beautifully written and extensively researched study, Barry Friedman explodes the common myth that the Supreme Court regularly thwarts the will of national majorities. The next time you hear a politician or pundit blather on about an out-of-control judiciary, tell them to stop pontificating until they have read this remarkable book.”—Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

“Since its inception, the United States Supreme Court has had to walk the delicate line between a respect for majority will and a protection of minority rights. Barry Friedman gathers wide-ranging evidence, much from surprising sources, to support the proposition that the court rarely strays too far from public opinion in the exercise of the power of judicial review, and we are better for it. All readers will profit mightily from this learned book, whether or not they buy into Friedman’s arresting thesis.”—Richard Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and Visiting Professor at New York University

“Serious and academic in tone, this book tackles a complex subject.”—Becky Kennedy, Library Journal

"Rather than a cloistered priesthood interpreting a sacred text, the Supreme Court is a canny group of political operators, argues this fascinating revisionist constitutional history. NYU law prof Friedman lucidly chronicles the Court's fraught relationship with presidents, Congress and the states, who have defied, threatened and rejiggered the Court when its rulings offended them. The Court has nonetheless made itself felt, Friedman argues, by cultivating powerful constituencies and aligning with prevailing winds: it became the handmaiden of Progressive-era industrialists and now reliably (and for the good, Friedman thinks) locates the moderate consensus on vexed issues like abortion and gay rights. Friedman offers a fresh, dynamic rethinking of the role of the Constitution and the Court that puts democratic politics at the center of the story."—Publishers Weekly