I’ve been meaning to do a writeup about several recent books analyzing the Supreme Court in political context. As a prelude to my comments below, my short take on Barry Friedman’s book is that it’s good and useful, but tends to conflate one powerful and convincing argument (the Supreme Court rarely acts without substantial support from powerful political forces) with a much less convincing argument (the Supreme Court tends to follow public opinion.) I’ll expand on that argument later, but I think something like this problem crops up in his recent piece with Dahlia Lithwick. It’s good that the myth that the Court is a generally “counter-majoritarian” institution is being questioned by commentators, but I think at times some caution is in order.
I don’t quibble with the claim that Citizens United is probably inconsistent with public opinion, but rather with the idea that this represents a failure (on its ow terms) on the Court’s part. I’m a little puzzled by the claim that the Roberts Court has “an uncanny sense of just how much activism the public will tolerate.” With some high-profile exceptions, I think the public is willing to tolerate a pretty wide range of judicial activism, if only because it simply doesn’t pay attention to most Supreme Court decisions. (I’m fairly confident that there would not have been any impact on public opinion had the Court decided to explicitly overrule McConnell or Flast v. Cohen in its first term.) I don’t see what consequences will flow to the Court if Citizens United is nominally unpopular among the public, because it’s such a low salience issue. If there’s any substantial pushback against the Court, it will come from Congress.
I also don’t really buy this:
Consider, too, that Anthony Kennedy is actually the one tone-deaf guy on the usually pitch-perfect Roberts Court. He thrives on being the swing justice, a man of history. But unlike his predecessor in that role, Sandra Day O’Connor, his chest cavity does not include a built-in barometer of the public mood. Kennedy’s nothing if not self-assured; he has a sense of rectitude that inclines him to plunge forward once he’s made up his mind.
I think the comparison with O’Connor is erroneous. Despite her centrism and preference for narrow opinions, all the evidence I’m aware of suggests that she was nothing if not self-assured, and justices who thought she could be persuaded were almost always disappointed. (It was Kennedy, not O’Connor, who switched sides to join Casey; O’Connor’s abortion jurisprudence was always consistent.) In addition, while many people assume that O’Connor’s famous centrist landmarks reflected a concern with public opinion, I think this is actually highly debatable. It’s true, for example, that Casey was a decent approximation of public opinion, but then it’s also exactly the opinion you would expect from a Court whose median votes were country club Republicans whether they cared about public opinion or not. (And note that public opinion can’t explain why O’Connor chose to strike down the spousal notification provision in Casey, which was roughly as popular as the ones she upheld.) I’m also curious which one of Kennedy’s famous opinions they consider unpopular. Lawrence is certainly consistent with national public opinion. The death penalty cases are tougher, because they deal with such narrow exceptions that there isn’t a lot of data, but at a minimum there’s no strong national consensus in favor of maintaining the death penalty for adolescents or the mentally handicapped.
I don’t mean to suggest that the justices completely ignore public opinion, and I think that some concern with public reaction may help to explain the Roberts Court’s usual fetish about minimalism. But I think it’s easy to exaggerate the role of public opinion, too. The Court has substantial freedom to diverge from public opinion when it has political support, and when the ideology of the median votes leads in that direction I expect the Court to go there, as it probably did in Citizens United.