The will of the people and the process of constitutional change

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1232-1254

  Friedman, Barry ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 78149317986     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (195)

1. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
2. See Jenna Bednar, The Dialogic Theory of Judicial Review: A New Social Science Research Agenda, 78 GEO. WASH. L. REV. 1178, 1179, 1189-90 (2010).
3. See id at 1178-79;
4. William E. Forbath, The Will of the People? Pollsters, Elites, and Other Difficulties, 78 GEO. WASH. L. REV. 1191, 1191-92 (2010);
5. Richard Primus, Public Consensus as Constitutional Authority, 78 GEO. WASH. L. REV. 1207, 1212 (2010);
6. see also FRIEDMAN, supra note 1, at 14-16.
7. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16 (1962) (discussing the "counter-majoritarian difficulty").
8. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 607-09 (1993) (finding that the Supreme Court reflects the majority opinion more often than thought and that public opinion polls show that even controversial judicial decisions frequently enjoy substantial public support).
9. See FRIEDMAN, supra note 1, at 354-65. Indeed, recent scholarship ironically criticizes the Court for mirroring the will of the people. Id. at 364-65;
10. see also David A. Strauss, The Modernizing Mission of Judicial Review, 76 U. CHI. L. REV. 859, 899-907 (2009) (criticizing the Court's acquiescence in the democratic process);
11. J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 STAN. L. REV. 1969, 1987 (2006) ("Splitting the difference ought not to be confused with judicial restraint.");
12. Jeffrey Rosen, Answer Key: Decoding Samuel Alito Jr., NEW REPUBLIC, Nov. 21, 2005, at 16 (accusing Justice Sandra Day O'Connor of "short- circuitfing] all of our most contested political debates" by splitting every difference).
13. FRIEDMAN, supra note 1, at 12-13.
14. Id. at 13-14.
15. Id. at 14-15.
16. See id at 373-74, 381.
17. Primus, supra note 3, at 1213.
18. See Friedman, supra note 5, at 578.
19. See FRIEDMAN, supra note 1, at 381-82 (describing how the Constitution acquires its meaning through the dialogic process of judicial decision, popular response, and judicial redecision).
20. See Friedman, supra note 5, at 579-81 (positing that, despite accusations that judicial review is undemocratic, all segments of society participate in constitutional interpretation).
21. Primus, supra note 3, at 1217.
22. FRIEDMAN, supra note 1, at 381-84.
23. See, e.g., STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 45 (1996) (explaining that the interplay of ordinary politics, interactions between the executive and legislative branches, and social culture shapes how Americans interpret the Constitution);
24. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 5 (2004) (arguing that "judicial decision making involves a combination of legal and political factors");
25. Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO L. REV. 1689, 1691 (2005) (showing that constitutional principles are political compromises by discussing the evolution of racial equality);
26. Neal E. Devins, Correspondence: The Stuff of Constitutional Law, 77 IOWA L. REV. 1795, 1797 (1992) (arguing that Supreme Court Justices pay attention to politics in forming their decisions);
27. Larry D. Kramer, Popular Constitutionalism, Circa 2004, 92 CAL. L. REV. 959, 959 (2004) (arguing that American constitutionalism has since its inception been a combination of the people's interpretation- "popular constitutionalism"- and the judiciary's "legal constitutionalism" );
28. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373,374 (2007) (advancing the "democratic constitutionalism" model);
29. Robert C. Post, The Supreme Court, 2002 Term- Foreword- Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003) (arguing that the Supreme Court takes into account constitutional culture when deciding cases);
30. Reva B. Siegel, Text in Contest: Gender and the Constitu-tion from a Social Movement Perspective, 150 U. PA. L. REV. 297, 303 (2001) (stating that in times of "constitutional mobilization, citizens make claims about the Constitution's meaning in a wide variety of social settings," which plays an important role in shaping how both courts and the general population interpret the text).
31. See Friedman, supra note 5, at 679 ("The judiciary is both visionary and reactionary simply because it is always somewhat out of sync with the waves of more political branches- always inching ahead or lagging behind. The divergence between popular sentiment and the judiciary is what makes the dialogue work.... Judicial action creates the dynamic tension that moves the system of constitutional interpretation along.").
32. Id.
33. FRIEDMAN, supra note 1, at 381-82.
34. The process of constitutional change evolves through the process of judicial responsiveness to public opinion. The very premise of this exchange undermines the basic philosophy of originalist interpretation- that the role of the judiciary is to divine the Framers' intent. See id. at 383-84 (describing the dialogic back-and-forth between the public and the Court); see also id. at 308-11 (discussing the shortcomings of originalism).
35. See Gerald Leonard, Party as a "Political Safeguard of Federalism": Martin Van Buren and the Constitutional Theory of Party Politics, 54 RUTGERS L. REV. 221, 227-34 (2001) (explaining the historical reasons for the Framers' antipartyism).
36. See Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1233-49 (1994) (explaining the rise of the modern administrative state and how its structure departs from what was anticipated by the Framers of the Constitution). Consider also the New Deal's expansion of national power.
37. Robert H. Bork & Daniel E. Troy, Locating the Boundaries: The Scope of Congress's Power to Regulate Commerce, 25 HARV. J.L. & PUB. POL'Y 849,850,881-83 (2002) (arguing that the New Deal cases expanded congressional power beyond what the Framers could have imagined at the time of the ratification);
38. William E. Forbath, The New Deal Constitution in Exile, 51 DUKE L.J. 165, 165-66 (2001) (citing Judge Douglas Gins-burg's phrase "the Constitution-in-Exile" as representative of restorationist scholars' belief that the New Deal exiled the original Constitution).
39. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 40-41, 44, 266-68 (1991) (identifying the Founding, Reconstruction, and the New Deal as three constitutional moments in which the people expressed themselves in such a way as to engage in "higher lawmaking").
40. See Michael Les Benedict, Book Review, 10 LAW & HIST. REV. 377, 379-80 (1992) (criticizing legal scholars for their overemphasis on particular events rather than on the continuous process of change);
41. Post, supra note 17, at 38-41 (using Frontiero v. Richardson, 411 U.S. 677 (1973), and its progeny as an example of when "constitutional culture," in this case the evolving notion of gender, modifies judicial doctrine).
42. Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 33-44 (1998) (arguing that constitutional values are mediated between past and present and evolve through this process);
43. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 905-06 (1996) (explaining how changes in judicial decisions and gradual shifts in politics and society, rather than revisions to the text of the Constitution, have led to important constitutional change).
44. Gideon v. Wainwright, 372 U.S. 335 (1963).
45. Id. at 344-45 (holding that an indigent defendant's right to counsel is fundamental to a fair criminal trial);
46. see abo United States v. Gonzalez-Lopez, 548 U.S. 140,152 (2006) (holding that a defendant has a right to his counsel of choice);
47. Argersinger v. Hamlin, 407 U.S. 25, 40 (1972) (holding that the defendant in any criminal prosecution involving the potential deprivation of liberty has a right to counsel).
48. Nat'l League of Cities v. Usery, 426 U.S. 833,852 (1976) (holding that the 1974 amendments to the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (2006), were unconstitutional under the Tenth Amendment because they trespassed on the traditional state function of regulating its employees' wages),
49. overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530-31 (1985).
50. Furman v. Georgia, 408 U.S. 238 (1972).
51. Roe v. Wade, 410 U.S. 113 (1973).
52. Gideon v. Wainwright, 372 U.S. 335 (1963).
53. Frontiero v. Richardson, 411 U.S. 677 (1973).
54. Grutter v. Bollinger, 539 U.S. 306 (2003).
55. Bowers v. Hardwick, 478 U.S. 186 (1986).
56. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
57. Lopez v. United States, 514 U.S. 549 (1995).
58. See FRIEDMAN, supra note 1, at 285-87 (showing how at the time of the Furman decision, social trends indicated a drop in the utilization of the death penalty, and substantial evidence existed that public sentiments ran against its continued use); id. at 296-99 (explaining that the Court decided Roe when the legalization of abortion became an important public issue in the 1960s largely due to the women's movement and the sexual revolution taking place in the United States, and amid polls suggesting that the decision to abort should be a private one between a woman and her doctor); id. at 273 (finding that the Warren Court decided Gideon at a time when forty-five states already required indigent defendants accused of felonies to be appointed counsel); id. at 293 (explaining how Frontiero was a reaction to the women's rights movement); id. at 361-62, 338 n.154 (noting that the Court's acceptance of The University of Michigan Law School's affirmative action scheme was consistent with public views about affirmative action); id. at 359 (explaining how the Court decided Bowers amidst the 1980s backlash against the gay rights movement and at the height of public panic over the AIDS epidemic; polls at the time showed that only thirty-three percent of the country supported the legalization of sodomy); id. at 243-44 (detailing how Brown was decided in light of strong social changes); id. at 330-32, 355-56 (analyzing the backdrop of the Lopez decision).
59. See id. at 273 (discussing the familiar road to Gideon); id. at 294-95 (explaining the evolution of the Court's sex discrimination jurisprudence following Frontiero); s
60. ee abo Strauss, supra note 26, at 905 (arguing that the "federalization of criminal procedure" and "the development of constitutional protections for women" evolved gradually over time)
61. See FRIEDMAN, supra note 1, at 287-88 (showing how the Court fell in line with public opinion following Furman by upholding most state death penalty statutes); id. at 359-60 (discussing Lawrence v. Texas, 539 U.S. 558 (2003), which overruled Bowers in the face of increasing acceptance of gay rights by the mainstream American public); see abo id. at 382 (explaining how the Court tends to respond to public backlash to its decisions).
62. See infra note 48 and accompanying text.
63. See FRIEDMAN, supra note 1, at 383-85 (finding value in the dialogic system that allows for the evolution over time of the Court's decisions in response to public debate).
64. See Barry Friedman, The Cycles of Constitutional Theory, 67 LAW & CONTEMP. PROBS. 149, 149-50 (2004) (discussing the evolution of constitutional theory and the shift in theorists' positions over time, as the political valence of the Court changed);
65. see abo FRIEDMAN, supra note 1, at 369-70 (highlighting that those persons unhappy with a particular Supreme Court decision are likely to accuse the Justices of going against the will of the majority).
66. FRIEDMAN, supra note 1, at 369-70.
67. See id. at 370 (discussing the problematic underlying assumption shared by those who approve and those who disapprove of Supreme Court decisions).
68. See id. at 381-83.
69. Id. at 383. See ACKERMAN, supra note 24, at 266-94, for distinctions between ordinary politics and constitutional decisions. Ackerman distinguishes between legislation enacted during times of "normal politics" by representatives of the people and the collective judgment of the people themselves as expressed through the Constitution in moments of "constitutional politics." Id. at 6-7; 266-94. See also Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CIN. L. REV. 1257, 1284 (2004), for an explanation of the difficulty in separating constitutional values from immediate preferences.
70. FRIEDMAN, supra note 1, at 383-84.
71. See Infra note 137 and accompanying text (discussing the gradual response to Roe and Bowers); infra note 139 and accompanying text (discussing the immediate reaction to Furman).
72. FRIEDMAN, supra note 1, at 368.
73. See, e.g., Forbath, supra note 3, at 1193 (stating that "'[t]he People' is a fiction"); Primus, supra note 3, at 1222 (noting that the public rarely has views approaching consensus).
74. FRIEDMAN, supra note 1, at 16-18.
75. See Friedman & Smith, supra note 26, at 80-85 (explaining that the American people are not a homogenous block).
76. See, e.g., FRIEDMAN, supra note 1, at 17-18.
77. See, e.g., id. at 287-88 (observing the winners and losers after the Furman decision and explaining that the winners did not reflect popular consensus).
78. Bednar, supra note 2, at 1183-84.
79. Forbath, supra note 3, at 1195-202;
80. see abo SARAH E. IGO, THE AVERAGED AMERICAN: SURVEYS, CITIZENS, AND THE MAKING OF A MASS PUBLIC 6 (2007) (explaining how polling in the United States shaped how Americans think of themselves).
81. Bednar, supra note 2, at 1183-84.
82. Forbath, supra note 3, at 1201.
83. See, e.g., JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA 9-10 (2006).
84. See Barry Friedman & Erin F. Delaney, Becoming Supreme: How Federalism Fosters Judicial Power (March 29, 2010) (unpublished manuscript, on file with author) (judicial supremacy was fostered by the federal system);
85. see abo Jack N. Rakové, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1041-50 (1997) (arguing in part that judicial review developed largely in relation to policing the boundaries of federalism).
86. See FRIEDMAN, supra note 1, at 155-60, 175-78 (discussing how the business elite pledged campaign support in exchange for Supreme Court Justices amenable to their interests in the Gilded Age); id. at 378 (explaining how the Court deviated from the majority opinion of the general population in Furst Amendment cases where the results have been more in line with the views held by the media).
87. See, e.g., ROSEN, supra note 60, at 9 ("[F]or much of American history, the most reliable representative of the constitutional views of the American people was Congress.").
88. For an interesting first cut, albeit with some difficulties, see Lawrence Baum & Neal . Devins, Why the Supreme Court Cares About Elites, Not the American People, 98 GEO. L.J. (forthcoming 2010).
89. FRIEDMAN, supra note 1, at 184.
90. Id. at 217-25.
91. See id at 224.
92. See id. at 225; WILLIAM E. LEUCHTENBURO, THE SUPREME COURT REBORN 139-40 (1995) (discussing Democratic Senators' noncommittal strategy);
93. JAMES T. PATTERSON, CONGRESSIONAL CONSERVATISM AND THE NEW DEAL 99 n.76 (1967) (presenting evidence that Senate opposition reflected constituent preferences);
94. see abo John Doe Abo Speaks Mind on President's Proposal, NEWSWEEK, Feb. 20, 1937, at 17 (highlighting the public debate surrounding President Roosevelt's Court-packing plan).
95. See FRIEDMAN, supra note 1, at 280-81, 287-88, 297-99 (highlighting the backpedaling that took place in the wake of massive negative popular response to the Bork nomination, the Furman decision, and Roe).
96. Id. at 377-78.
97. Id at 378.
98. See, e.g., RONALD DWORKIN, THE SUPREME COURT PHALANX: THE COURT'S NEW RIGHT-WING BLOC 47 (2008) (accusing the Court's new right-wing bloc of "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed"). For an extended description of the reasons for stealth overruling and a normative assessment of the practice,
99. see Barry Friedman, The Wages of Stealth "Overruling" (with Particular Attention to Miranda v. Arizona) (May 29, 2010) (unpublished manuscript, on file with author).
100. Forbath, supra note 3, at 1202. The Roberts Court's probusiness decisions have notuntil very recently- received the same mediatized attention as other decisions, e.g., abortion and gun control issues. See FRIEDMAN, supra note 1, at 377-78.
101. See, e.g., Cuomo v. Clearing House Ass'n, 129 S. Ct. 2710, 2715 (2009) (split decision) (finding that a regulation suggesting the preemption of state-law enforcement did not reasonably interpret a provision of the National Bank Act codified at 12 U.S.C. § 484(a) (2006));
102. Wyeth v. Levine, 129 S. Ct. 1187,1204 (2009) (split decision) (holding that state-law tort claims relating to the labeling of a pharmaceutical drug were not preempted by federal law).
103. Citizens United v. FEC, 130 S. Ct. 876 (2010).
104. Adam Liptak, A Justice Responds to Criticbm from Obama, N.Y. TIMES, Feb. 4, 2010, at A19; Posting of Evan McMorris-Santoro to TPMDC, http-7/tpmdc. talkingpointsmemo.com/2010/ CT2/poll-rwo-thirds-of-americans-unhappy-about- citizens-united-decision.php (Feb. 8, 2010,13:44 EST).
105. Bednar, supra note 2, at 1186.
106. Forbath, supra note 3, at 1201-02.
107. See Bednar, supra note 2, at 1186, 1189;
108. see abo LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 227-48 (2004) (worrying that the American population has accepted judicial decisions at the expense of the democratic debate);
109. ROSEN, supra note 60, at 8-10 (arguing the risk of the Court following popular opinion on constitutional matters leads to decisions based on politics and not on law); Strauss, supra note 6, at 899-907 (expressing worry over the Court's overly quick acquiescence in the democratic process); Wilkinson, supra note 6, at 1987 (arguing that splitting the difference is not the same as judicial restraint); Rosen, supra note 6, at 16 (discussing how Justice O'Connor aggrandized her own power at the expense of democratic governance by splitting the difference).
110. See TERRI JENNINGS PERETTI, IN DEFENSE OF A POLITICAL COURT 136-58 (1999) (arguing that Justices may choose to follow the more passive strategy of "anticipated reaction" in light of formal and informal checks on the Court);
111. William N. Eskridge, Jr. & Philip P. Frickey, Foreword- Law as Equilibrium, 108 HARV. L. REV. 27,37-39 (1994) (explaining the "anticipated response" of the Court's decisions to avoid sanction);
112. see abo James A. Stimson, Michael B. Mackuen & Robert S. Erikson, Dynamic Representation, 89 AM. POL. SCI. REV. 543, 544-45 (1995) (describing the phenomenon as "rational anticipation").
113. See Barry Friedman & Anna Harvey, Electing the Supreme Court, 78 IND. L.J. 123, 125-39 (2003) (finding through empirical evidence that the Court is sensitive to the ideological composition of a sitting Congress, and it is more likely to overturn congressional statutes when faced with an ideologically similar Congress);
114. Anna Harvey & Barry Friedman, Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987-2000, 31 LEGIS. STUD. Q. 533 (2006) (empirical study providing evidence that the Court's certiorari decisions are constrained by congressional and presidential ideology).
115. FRIEDMAN, supra note 1, at 324-43.
116. Id. at 326-27, 339-41 (discussing the political turmoil following the Court's affirmative action decisions); id. at 339 (describing conservative opposition to Lawrence v. Texas, 539 U.S. 558 (2003)); id. at 330-32 (discussing the controversial federalism rulings).
117. See Robert C. Post & Reva B. Siegel, Legblative Constitutionalbm and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 1980-2020 (2003);
118. Reva B. Siegel, Dead or Alive: Originalbm as Popular Constitutionalbm in Heller, 122 HARV. L. REV. 191, 201-36 (2008) [hereinafter Siegel, Dead or Alive]; Reva B.
119. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalbm, and the Family, 115 HARV. L. REV. 947, 968-76 (2002) [hereinafter Siegel, She the People].
120. See Siegel, She the People, supra note 84, at 968-76.
121. See FRIEDMAN, supra note 1, at 359-60.
122. See id. at 330-32.
123. See id. at 285-89, 295-99, 359-60 (showing the large-scale public response after Furman, Roe, and Bowers that engaged in constitutional debate); Post, supra note 17, at 8-9 (arguing that "constitutional culture"- the beliefs and values of nonjudicial actors- are present and engage the judiciary in a manner that ultimately affects the Court's decisions).
124. See, e.g.. Above the Law, http://www.abovethelaw.com (last visited June 28, 2010);
125. Constitutional Law Prof Blog, http://lawprofessors.typepad.com/conlaw (last visited June 28, 2010);
126. Health Care Law Blog, http://healthcarebloglaw.blogspot.com (last visited June 28, 2010);
127. The Hill, http://thehill.com/blogs/congress-blog/judicial (last visited June 28, 2010);
128. Legal History Blog, http://legalhistoryblog.blogspot.com (last visited June 28, 2010);
129. SCOTUSblog, http://www.scotusblog.com (last visited June 28, 2010);
130. The Volokh Conspiracy, http://volokh.com (last visited June 28, 2010).
131. See Forbath, supra note 3, at 1195-202.
132. Bednar, supra note 2, at 1187.
133. Forbath, supra note 3, at 1204-06.
134. See, e.g., CONSTITUCION POLÍTICA DE COLOMBIA [C.P.] art. 49 (guaranteeing citizens the right to health);
135. INDIA CONST, art. 21 (conferring a right to life and livelihood); S. AFR. CONST., 1996 §§ 7-39 (providing expansive protections to civil and political rights).
136. See, e.g., William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 62-75 (1999) (arguing that the basis for social rights during the New Deal was rooted in the federal government's ability to promote the "general welfare").
137. See Barbara Bennett Woodhouse, The Constitutionalization of Children's Rights: Incorporating Emerging Human Rights into Constitutional Doctrine, 2 U. PA. J. CONST. L. 1, 4 (1999) (noting that the U.S. Constitution is silent on gender and age discrimination, pregnancy and reproduction, and the rights of parents and families).
138. See U.S. CONST, amend. XVII.
139. See, e.g., United States v. Morrison, 529 U.S. 598 (2000);
140. Craig v. Boren, 429 U.S. 190 (1976);
141. Frontiero v. Richardson, 411 U.S. 677 (1973);
142. Reed v. Reed, 404 U.S. 71 (1971).
143. See Barry Friedman, Reconstructing Reconstruction: Some Problems for Originalbts (and Everyone Else, Too), 11 U. PA. J. CONST. L. 1201, 1214 (2009) (contending that originalists arguing in favor of women's rights are largely "swimming upstream");
144. see also Jack M. Balkin, Framework Originalbm and the Living Constitution, 103 Nw. U. L. REV. 549, 550, 569-74 (2009) (attempting to reconcile originalism with gender equality by arguing that "framework originalism" is compatible with women's rights because "constitutional construction" legitimately builds on the original text).
145. See Lawson, supra note 23, at 1233-49.
146. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 129-32 (1990).
147. See Forbath, supra note 23, at 165 (discussing restorationist scholars' view that the New Deal revolution exiled the Constitution).
148. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
149. See Siegel, Dead or Alive, supra note 84, at 236-45 (arguing that Heller is a product of recent social movements promoting gun rights);
150. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 254, 264-75, 311-22 (2009) (arguing that Heller, though lauded by conservatives, is in effect a departure from the Constitution's text and a rejection of the principles of federalism).
151. See supra note 103 and accompanying text.
152. See supra notes 26-28 and accompanying text.
153. Primus, supra note 3, at 1218.
154. Id at 1213-15.
155. Id at 1218-22.
156. It is true that on the issue of interpretation, The Will of the People does not have a lot to say, in part because Supreme Court Justices are less constrained by doctrine than other judges. In general, this period has the most fruitful collaboration to date of political scientists and legal academics in understanding how the judiciary decides cases, as well as how it should. But Supreme Court Justices simply are different from their colleagues in the lower courts. Vertical constraint applies not at all. And how much horizontal stare decisis should apply is always a matter of contest. The simple fact is that Supreme Court Justices are relatively unconstrained in their decisionmaking. That is why the external forces identified in The Will of the People matter so.
157. FRIEDMAN, supra note 1, at 372-85.
158. Korematsu v. United States, 323 U.S. 214 (1944).
159. Id. at 223-24;
160. see also FRIEDMAN, supra note 1, at 372-73.
161. Subsequent inquiry revealed that the government had suppressed further evidence of lack of military necessity as well as the racism inherent in the decision. See FRIEDMAN, supra note 1, at 372;
162. DAVID J. O'BRIEN & STEPHEN S. FUGITA, THE JAPANESE AMERICAN EXPERIENCE 45 (1991) (noting that the Munson Report, prepared several months before the Pearl Harbor attack, found no danger of collaboration between Japanese Americans and the Japanese in Hawaii or on the West Coast).
163. Primus, supra note 3, at 1218. For another account of why strongly held disagreement with Supreme Court decisions should matter, see Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 STAN. L. REV. 155 (2007).
164. Primus, supra note 3, at 1209.
165. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (holding that when local economic regulation is challenged only as a violation of the Equal Protection Clause, the Court will defer to the legislature);
166. McGowan v. Maryland, 366 U.S. 420, 444-45 (1961) (holding that laws with religious origins are not per se unconstitutional if they have a secular purpose);
167. Ry. Express Agency, Inc. v. New York, 336 U.S. 106,110-11 (1949) (upholding a city regulation prohibiting businesses from advertising on their delivery vehicles except when promoting their own products).
168. See, e.g., N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 592-94 (1979) (upholding the New York City Transit Authority's policy of refusing to employ methadone users).
169. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 690-91 (1973) (holding that benefits given by the U.S. military could not be given out differently based on gender);
170. Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding that strict scrutiny should be applied to discrimination against aliens).
171. See Corinna Barrett Lain, The Unexceptionalbm of "Evolving Standards," 57 UCLA L. REV. 365, 367-88, 395-97 (2009) (showing that in these domains of law, the Supreme Court looks to state law and policy and has ruled in accordance with the majority of states);
172. see also Roper v. Simmons, 543 U.S. 551, 567 (2005) (giving deference to states' irregular use of the death penalty on juveniles);
173. Lawrence v. Texas, 539 U.S. 558, 573 (2003) (giving deference to the unusual practice of enforcing sodomy laws).
174. See, e.g., Roper, 543 U.S. at 567 (referencing the numerous states that had already legislated a ban on the death penalty for juveniles, as well as its infrequent use in states still permitting it, in affirming the lower court's decision to ban capital punishment for juveniles); Lawrence, 539 U.S. at 573 (basing the reconsideration of Bowers v. Hardwick, 478 U.S. 186 (1986), on the limited practice of enforcing sodomy laws even when they are still on the books).
175. See Friedman, supra note 5, at 603 (citing the Supreme Court's decision in Maryland v. Craig, 497 U.S. 836 (1990), as an example of the Court relying on state legislatures and interests to find that the Confrontation Clause does not inherently prohibit a child witness from testifying via closed-circuit television); Friedman & Smith, supra note 26, at 34-67 (describing the process of sedimentary interpretation, which draws from a wide variety of sources); Lain, supra note 119, at 370-400 (discussing the Court's reliance on state policies to reach constitutional decisions).
176. FRIEDMAN, supra note 1, at 370-76.
177. See id at 371.
178. See Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, In JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 9, 29 (Stephen B. Burbank & Barry Friedman eds., 2002) (arguing that public opinion should not influence trial judges' findings of fact).
179. See id. at 26 (stating that judges are more likely to respond to influences that determine their future fates on the bench).
180. See id at 29-30 (arguing for different treatment of appellate and trial court elections).
181. See id. at 29.
182. See FRIEDMAN, supra note 1, at 370, 375.
183. Id. at 382-84.
184. Id. at 368.
185. Id. at 106-07.
186. See id. at 379-80 (discussing the public's reluctance to discipline the Court even after it issues an unpopular decision).
187. See Bednar, supra note 2, at 1186-87.
188. The mediated nature of the Court's public accountability can be problematic. As Professor Forbath properly observes, opportunistic Court majorities can manipulate the practice to achieve their goals in subtle ways. Forbath, supra note 3, at 1201. These practices, once again, raise concerns about decisions in nonsalient areas or things such as stealth overruling. See supra note 72 and accompanying text.
189. See Bednar, supra note 2, at 1184-87.
190. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
191. See FRIEDMAN, supra note 1, at 380-82; 359-60.
192. Gregg v. Georgia, 428 U.S. 238 (1976).
193. See FRIEDMAN, supra note 1, at 285-88.
194. See Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD. 1,2-3 (2007) (arguing that judges should consider strongly held public opinion as an ingredient that informs correct constitutional interpretation).
195. FRIEDMAN, supra note 1, at 373-74, 381.