The people's Supreme Court

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The Supreme Court often is either loved or hated: liberals love the liberal decisions, conservatives love the conservative ones - and each side deplores the court when it goes the wrong way. It is just this kind of strong public opinion that keeps unaccountable justices accountable, says Barry Friedman, vice dean and Jacob D. Fuchsberg professor of law at New York University School of Law. In his book, "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution," published by Farrar Straus and Giroux in September, Friedman explores the cloistered decision-making that has helped guide American progress.

GUEST BLOGGER: Barry Friedman

How do you think about the Supreme Court?

Is it as nine aloof lawyers, cloistered in their marble temple, handing down edicts about the Constitution?

That, more or less, is how the justices have been understood throughout history.

Some love this imagery. In it they see the essence of judicial independence and the rule of law. It allows the justices to uphold constitutional rights and ensure equality under law. Think of Brown v. Board of Education, or decisions protecting free speech under the First Amendment.

Others revile it. Witness the frequent cries of "judicial activism" over the last fifteen years. People feel the justices can do whatever they wish, without accountability. These complaints, from the left and right alike, involve decisions about gay rights, affirmative action, the death penalty and the war on terror.

Whatever you may think of the story, it isn't true. The fact is the justices are accountable to popular opinion. And they know it. For that reason, most of their decisions, the big ones at least, stay tolerably within the mainstream. And for that reason (among others), the Supreme Court remains one of the most popular institutions in American government.

We don't think of the justices as accountable because they don't run for re-election, and they don't appear to be subject to any constraints if they go astray. Historically, though, this isn't true. The Supreme Court has been "packed," i.e. it has had its size changed to affect results in cases. The court's power to decide cases has been taken away. Judicial budgets have been cut, the justices have even been hung in effigy. Most important, sometimes when people really disagree, as with school prayer, they just ignore the court.

Just because you don't see this happening overtly, doesn't mean the system of accountability isn't quietly operating.

The Roberts court is very conservative. No surprise there: Only three justices have been appointed by Democratic presidents, and the most liberal member of today's court, Justice John Paul Stevens, was appointed by a Republican.

But the court could be a lot more conservative and activist than it has been.

There are two reasons we should care about this system of judicial accountability.

One reason is to realize that most of the time when people cry "activism" they may be far off the mark. The court typically is in step with popular opinion in the salient cases.

But the other reason is so that we have a clearer understanding of just when the justices can still do what they like. The Roberts court has been adept at flying under the radar. It has overruled important precedents in cases that garnered little public attention. For example, the decision in Montejo v. Louisiana, holding that police can question criminal defendants without telling their lawyers.

No one would tolerate this sort of conduct in a civil case. They overrule prior decisions by stealth, not saying so but ignoring the earlier holdings. And when the public or liberals are split on an issue, like campaign finance, the conservative justices can do exactly what they please.

Expect that to happen later this term, when the justices overrule prior decisions and allow corporate speech in favor of candidates.

By Steven E. Levingston |  December 29, 2009; 5:30 AM ET Politics , Steven Levingston
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Simple . . . Too many Roman Catholics, which in this particular situation means decisions tainted by far right fundamentalistic religious dogma.

Posted by: lufrank1 | December 29, 2009 1:15 PM

I'm quite unsure of the value that should be attached to public approbation/ disapprobation in moderating the opinions of the Court. Both liberal and conservative courts have always felt free to lead the charge on issues, even in the face of overwhelming public opinion in the opposite direction. Marbury was unpopular at the time it was rendered. Brown was very unpopular at the time it was rendered. Kelo was and is immensely unpopular. I would rather suggest that the Court is moderated not by public opinion, but by the compass of Anthony Kennedy. Where a case divides not upon mere law, but upon societal perception, it is Mr. Justice Kennedy's perception that controls the day. It was Kennedy who opposed the Texas sodomy law as unconstitutional. It was Kennedy who believed it unconstitutional to sentence the mentally retarded to death (despite Scalia's 13th century advocacy of distinguishment vis-a-vis idiots and imbeciles). You may call it the Roberts Court out of allegiance to practice, however, the Court is Kennedy's in substance. Mr. Kennedy happens to be fairly moderate, as compared to Stevens and Scalia. I don't know where we would be without him on the bench.

Posted by: seve2yoo | December 29, 2009 8:20 PM

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