But How Will the People Know? Public Opinion as a Meager Influence in Shaping Contemporary Supreme Court Decision Making

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply “applies” the rules, rather than making them. Roberts promised to “remember that it’s my job to call balls and strikes and not to pitch or bat.” At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts’s metaphor might erroneously suggest that “everything is clear-cut, and that there’s no judgment in the process.” Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman would likely reject the Chief Justice’s analogy as well, but for a different reason. Friedman might describe Supreme Court Justices as umpires who call the balls and strikes, but whose future calls in constitutional law cases might be influenced by an angry crowd-leading them, for example, to reverse the call of a strike if the fans believed strongly enough that the pitch was low and outside. Friedman offers The Will of the People as a response to a “persistent complaint about judicial accountability”-that unelected and unaccountable judges wield tremendous power, which thwarts democratic judgments (p. 6). As Friedman relates this complaint, which has famously been described as the “countermajoritarian difficulty,” “when the justices base a ruling on the Constitution, the country must live with that decision unless and until the Court reverses itself or the rare constitutional amendment is adopted. There is no overriding the Court otherwise” (p. 5).