Defending the Majoritarian Court

In his book, The Will of the People, Barry Friedman argues that the U.S. Supreme Court and the American people have reached a tacit agreement under which the Court may engage in judicial review as long as it never strays too far from mainstream public opinion. Those convinced by Friedman's thesis-and I count myself among the many-are left with troubling questions about the role of the federal judiciary in our system of government. First and foremost, what is the purpose of establishing an appointed, life-tenured federal judiciary if its members inevitably follow the will of the people? If the Supreme Court's primary function is to "rubberstamp public opinion,"' as Friedman's thesis suggests, then why allow judicial review at all? We already have two branches of the federal government that are bound to serve the constituencies that elected them, so why add review by a third branch to the same effect? In short, by debunking the counter-majoritarian difficulty-that is, the claim that judicial review is undemocratic because it allows unelected judges to reverse decisions made by elected officials-Friedman leaves the reader with the opposite problem: how to justify the continued existence of the Supreme Court in light of its evolution from "an institution intended to check the popular will to one that frequently confirms it."

Friedman's book is devoted to describing the Supreme Court's majoritarian tendencies, not to defending its existence, and thus his answers to these questions are necessarily undeveloped. In the book's conclusion, Friedman suggests that the Supreme Court's true worth lies in its ability to serve as a catalyst for conversations with the public about constitutional values.' He argues that "it is through the dialogic process of 'judicial decision-popular response-judicial re-decision' that the Constitution takes on the meaning it has."4 Although the Court is ultimately led by the sustained, strongly felt preferences of the general public, Friedman contends that it has some leeway to reject the fleeting and ill-conceived whims of the majority and perhaps even shape emerging public preferences.' If true, the federal judiciary serves an important role in our system of government despite its inability to deviate far, or for long, from mainstream opinion. As Friedman admits, however, legal scholars have only a minimal understanding of how the courts and public opinion affect one another, and thus his description of their interactions is nothing more than an educated guess.'

In this Essay, I seek to test Friedman's suggestions by contrasting the constitutional decisions of the appointed, life-tenured judges of the federal courts with those of elected state court judges. Elected judges perform essentially the same function as federal judges, and they act under most of the same institutional constraints, such as serving on collegial courts, issuing written opinions, and deciding cases within a limited docket. Unlike federal judges, however, elected state court judges are directly accountable to the public through periodic elections. As Friedman has shown, federal judges are kept in check by the public they serve despite their life tenure, raising the question of whether they act any differently than the other elected officials who must accede to majority preferences. Thus, variations in these two court systems' approaches to constitutional cases can shed light on the purpose of maintaining a federal judiciary that is far from the independent and apolitical institution that Americans have long believed it to be.