72 U. Cin. L. Rev. 1257

                                University of Cincinnati Law Review

                                           Summer, 2004

                                    William Howard Taft Lecture

           THE IMPORTANCE OF BEING POSITIVE: THE NATURE AND FUNCTION OF JUDICIAL REVIEW

                                         Barry Friedmana1

                    Copyright (c) 2004 University of Cincinnati; Barry Friedman

                                          I. Introduction

Judicial review is under attack today, as it is every time the Supreme Court rises from its posture
of deferential review and actively strikes down laws, particularly congressional ones.1 The current
wave of criticism is strong. We might have to look back to the early 1970s, the time of Roe v.
Wade,2 or the aftermath of Brown v. Board of Education3 in the 1950s, to find such a period of
sustained academic concern about what it is that the Court is doing. Yet, it is true today, as it
typically has been in the past, that commentary on the Court inevitably is motivated and molded as
much by approval or disapproval of the Court’s immediate decisions as by an attempt to stand aloof
from present events and ascertain what the institution does, and whether on balance it is worth
it.4

The title of this talk is The Importance of Being Positive: The Nature and Function of Judicial
Review, and it is the “positive” aspect that is critical here. “Positive” does not mean
“approving,” or even “optimistic,” as in a “positive attitude.” Instead, the approach is one, drawn
from the social sciences, that looks at political institutions in order to develop a theory of how
they work, and why they work the way they do. “Positive,” in this sense, is juxtaposed with
“normative.” Most scholars in the *1258 legal academy, and especially in constitutional theory,
take it as their business to tell the Court what it should do. A positive approach is more
concerned with trying to understand what the Supreme Court does do, and why it does it. It is that
descriptive, explanatory lens that grants some small measure of remove from a subject about which
there typically are strong feelings. The idea here is to try-for just a little while-to put aside
strong feelings, whatever they may be, and engage in the social scientific endeavor of trying to
understand how the Supreme Court, and judicial review, operate in practice.

In broad design, the discussion that follows has three Parts. The first is descriptive: it sets the
stage by looking at what the Supreme Court has been up to of late, and what the critics have had to
say. From this perspective, we can draw out the essence of complaints about judicial review. The
next Part is deconstructive. We will use the lens of history and the tools of political economy to
see why the concerns we typically hear expressed about judicial review likely are not correct, and
perhaps cannot possibly be correct. Finally, we will engage in reconstruction. Using the same sort
of positive analysis, we will think about what role judicial review actually performs.

What ultimately will emerge is a theory of judicial review.5 It may seem there already are enough
theories of judicial review to go around, but ironically this is not the case. Many of those who
write about judicial review at present are concerned with telling the Court what it should not do.
But unless the Court is to do nothing at all, the Court’s critics too often leave us somewhat at a
loss as to what the Court should do. Few of those critics actually believe judicial review should
be abolished,6 and for good reason. Whether judicial review is a good thing ought to rest-at least
in part-on an empirical analysis of whether the institution does more harm than good with regard to
things we hold dear. We are not remotely close to an answer to that question, in part because we
are not close to understanding how judicial review operates, nor what it actually does.

The theory of judicial review advanced here attempts to account for what it is that judicial review
actually accomplishes. It is only once we come to some understanding of this that those in the
academy with the *1259 tools to do the measuring can determine whether judicial review is an
institution worth keeping, modifying, or even abolishing. To put my cards on the table at the
outset, my intuition is that the institution plays a useful role. As we will see, it is not the
role ascribed to judicial review by most observers in the legal academy, in which the Supreme
Court-for better or for worse-decides constitutional meaning. Rather, in my view the Supreme
Court’s exercise of judicial review forces a conversation within the polity about what the
Constitution should mean. And I think this is a good thing. Nonetheless, I think there surely is
room to entertain discussion about institutional design, whether of judicial review itself, or of
some of its attendant practices, such as the confirmation process. And I would stress that all I
offer is an intuition; I am open to evidence that my intuition is wrong. At the same time, I also
must be candid in telling you that firm evidence is not so easily come by-perhaps for reasons that
might already be apparent. We live in a world of judicial review, and it is difficult to compare it
to a world identical to our own but without it. Thus, you, like me, might ultimately be cast back
on faith. Yet even our faith should be guided by some evidence in our own world. It is to that
world that I wish to turn.

                                       II. October Term 2002

As good a place as any to begin the story would seem to be the Supreme Court’s most recent Term.
But at what point during the October 2002 Term should one focus? What began as business as usual,
by Term’s end left many with mouth agape.7

As late as January 2003, people knew what the Rehnquist Court was about, and how they were supposed
to feel about it.8 The Court that took the bench in October 2002 was understood to be profoundly
conservative, even if sharply split. This was the Court that seemed to be rolling back the New Deal
settlement, paying small heed to a constitutional regime that had operated comfortably for some
sixty years. The *1260 Court was unabashed about placing federalism limits on Congress.9 It had
invigorated the Eleventh Amendment, emphasizing State immunity from paying money damages for
constitutional violations.10 The Rehnquist Court had been tough on criminal defendants, habeas
petitioners, illegal aliens, and minority groups seeking protection in the courts, despite a bit of
leftward movement of late.11 The only rights that received much protection were “States’ rights”
and property rights, and perhaps those under the strangely ubiquitous First Amendment.12 And then,
of course, there was Bush v. Gore.13

It was the very stability and continuity of this conservative movement that gave rise to present
controversies about judicial review. The Warren Court, that time of left-leaning judicial activism,
came to a close in 1968.14 From the early 1970s on, the Supreme Court has tilted in a more
conservative direction, but from the elevation of Warren Burger as Chief Justice, replacing Earl
Warren, until, say, 1994, the record of the Supreme Court was sufficiently mixed as to engender no
strong *1261 liberal backlash to the Court.15 Sure, the Court gradually caved in on things like the
death penalty,16 school desegregation,17 and even affirmative action,18 not to mention habeas
corpus.19 But perhaps because liberal agendas were shifting, and perhaps because the Court hung in
there on things that mattered to the left-like the remarkable plurality in Casey v. Planned
Parenthood20 upholding a woman’s right to reproductive choice-liberals were content to leave their
criticisms to the details and remain signatories to the idea of judicial review itself.

Then, beginning in 1994, the Supreme Court took on an increasingly activist and conservative cast,
especially with regard to congressional enactments. During the last decade the Court invalidated no
less than thirty-three congressional laws, qualifying it as among the most activist in history.21
Many of these were progressive laws enacted by Democratic Congresses. This past Term signaled the
first one since 1994 in which the Court did not strike down at least one congressional law.

Toss Bush v. Gore into the mix, and it is fair to say liberal academics had had it. In addition to
the usual scholarship on the substance of the Court’s jurisprudence, all of the sudden law reviews
and bookshelves were full of writing condemning the Court, and urging action of various sorts, from
structural change (an attempt to address all those five-to-four decisions)22 to standards of review
(urging a return to deferential review, *1262 especially of congressional factfinding).23 While
complaints about the substance of Supreme Court decisions are to be expected, and there have been
plenty of them, what really has been striking of late is the tone of the writing and the extreme
nature of the remedies proposed. The last time liberals were heard to sound such notes was seventy
years ago, when a recalcitrant Supreme Court stood in the way of Franklin Roosevelt’s New Deal.24

Once one studies two hundred years of attacks on the Supreme Court and judicial review, it becomes
clear that the critics’ stance toward the Court at any given time necessarily reflects what the
Court is doing at the moment.25 And so it was that the specific nature of the Rehnquist Court’s
activism engendered particular criticisms. Many of the congressional laws struck down by the Court
have been enacted under Congress’ power set out in Section 5 of the Fourteenth Amendment. That
provision seems to give Congress its own authority to interpret the Constitution.26

Liberals thus find deeply grating the Court’s increasingly hegemonic tone, its all-too-frequent
insistence that it is the sole constitutional interpreter.27 The root complaint of liberals is that
today’s Court had *1263 grown too big for its britches in claiming an exclusive right to interpret
the Constitution, at the direct expense of “the People.”28 Liberal scholars urge more deference be
given to constitutional interpretation “outside the courts.”29 They advance theories of “popular
constitutionalism.”30

Of course, liberal scholars are not the only ones speaking up, though the conservative line has
been a bit slower to reveal itself. At least since the late 1800s, conservatives have approved of
judicial review as a bulwark of constitutional safeguards. By the end of the Warren Court,
conservatives (or at least some of them) were changing their tone, raising the
“countermajoritarian” problem with judicial review.31 But their claim was not so much that we
should abandon constitutional judging, as that we must confine the discretion of those judges to
the preferences of the Framers, a theory commonly referred to as originalism.32 Thus, when the 1994
onslaught began, it was easier for conservatives to present the face of consistency. This seeming
activism, conservatives might claim, was only a Court come round again to the values that *1264
animated us in 1787. (Never mind that liberals said the same thing after they got hold of the Court
in the early 1940s.)33

Even yet, there was a subtle shift occurring in conservative circles. Since the 1950s,
conservatives of various stripes have been disgusted with the direction of the courts, even with
many conservatives on the bench.34 As the Court entered its 2002 Term, conservatives were just
again finding the wind in their lungs to shout approval and defend the very sort of vigorous
judicial activity they might have been expected to condemn.35 Which is to say, conservatives are no
different than liberals: their view of judicial review ultimately depends on what the courts are
doing.

And then came the Spring of 2003. A handful of cases does not a Term make, let alone does it
indicate the Court’s direction. Yet, that handful of cases, some of the most anticipated in years,
on some of the hottest issues of our day, caused the rest of the Court’s Term to fade quickly from
public view. Robert Post’s Supreme Court Foreword chronicling the October 2002 Term rightfully
focuses its attention on these decisions, thunderbolts each, if only because the consistently
“liberal” nature of the results were unanticipated by many.36 In *1265 Hibbs37 the Supreme Court
upheld Congress’s power to enact the Family and Medical Leave Act, despite its seeming
vulnerability under such past precedents as Lopez38 and Morrison.39 In the duo of Gratz40 and
Grutter,41 the Court stamped with approval at least some university affirmative action programs.
And in Lawrence v. Texas,42 in a decision that sounded a strong note of equal respect for the
rights of gays, lesbians, and bisexuals in our society, the Supreme Court overruled Bowers v.
Hardwick43 and held that states may not criminalize homosexual sodomy.

This, one might ask, is a conservative Court? The Term left some conservatives apoplectic, and many
liberals scratching their heads.44 It is far too early to say whether this Term will influence a
change in thinking about the Supreme Court. One might assume that liberals will *1266 not quickly
abandon their condemnation of the Rehnquist Court, even though this triumvirate of judicial
holdings is going to require some adjustment in liberal complaint, some shift in calculation.
Conservatives who were just jumping onto the bandwagon of judicial review might find themselves
hopping back to the curb. As they dust themselves off, they are likely to make their displeasure
known.

All of which is to say that, on balance, criticism of the Court is likely to increase in volume,
not decrease. Indeed-and there have been some hints of this in the air for a while now-discontented
liberals and shaken conservatives may find common communion in skepticism about the entire idea of
constitutional review. After all, recent liberal insistence on the interpretive authority of the
political branches as to constitutional meaning actually echoes a claim that originally was the
conservatives’ own.45

For our purposes, the Supreme Court’s October Term 2002 decisions are a blessing, because they
force us to look deeper to understand the source of complaints about judicial review. What is
useful about the Court’s seeming ideological flip of last Term is that it permits us to see that
the “problem” of judicial review is not one of substance and ideology. When the Court’s ideological
valence is stable over a certain period, then it is easy to get hooked into thinking that the
problem is the way in which the Court is deciding cases on the merits. Ideological consistency in
Supreme Court decisions also is likely to split opinion about what the Court is doing between those
opposed and those who would defend the Court. Throughout history liberals and conservatives
typically find themselves on opposite sides of the fence regarding judicial review. Thus, the
debate over constitutional judging easily can look like a partisan, or ideological, contest.

*1267 The quick flip of the past year, even if it proves fleeting, reveals the deeper issues at
stake regarding the institution of judicial review, issues that always have been running just below
the surface of immediate controversy. It is to those more enduring issues that we now turn. We will
come back to this Term, and when we do we will see that if not altogether predictable, this Term’s
decisions are not all that surprising. We might not be able to “explain” the decisions in any
strong causal sense, but we surely will be able to lay a finger on the forces that likely had some
hand in the results. Indeed, one of those forces, as we will see, may have been the criticism of
the Court’s conservatism itself.

                            III. The Hope and Threat of Judicial Review

With an eye on history-and history is going to play a large role here-it is easy to see that there
is a pair of framing assumptions regarding judicial review that comes to the fore time and again.
History shows that these framing assumptions are not unique to liberals or conservatives.
Repeatedly we see that when the Court is attacked there often is a common concern resting at the
bottom of that criticism, representing the harm that judicial review can work.46 And when judicial
review is defended there is a common premise to those defenses, the promise-or hope-that judicial
review holds out.47 This harm and *1268 promise, or threat and hope, are the bookends in any
serious discussion of the role of judicial review in democratic government.

Echoing a point made at the close of the last Part, it is important in considering these bookends
to understand that whether one is on the side of hope or threat has nothing whatsoever to do with
ideology, with political preferences. Which side one is on is at best an accident of history. It
depends on whose ox the courts are goring at themoment, and whose is spared from slaughter. Perhaps
it need not be so. Perhaps there have been those who, while the ox is being gored, rose to defend
the sword bearer, just as there were those who, while seeing the ox spared, nonetheless rued the
intervening force. But typically one’s perspective on judicial review mirrors one’s view of
outcomes, and at different times in history liberals and conservatives have taken both postures.48

The threat identified by the Court’s detractors at any given moment is that judicial review
actually will be detrimental to the ability of the people to govern themselves, indeed that it
might be radically inconsistent with democracy. When the Supreme Court is attacked, often the claim
put forth is that the Court is interfering with the will of the people. Perhaps the most famous
statement of the problem is Alexander Bickel’s from The Least Dangerous Branch, in which he stated
that the “reality” is “that when the Supreme Court declares unconstitutional a legislative act or
the action of an elected executive, it thwarts the will of representatives of the actual people of
the here and now; it exercises control, not on behalf of the prevailing majority, but against
it.”49

*1269 On the other hand, the Court’s defenders emphasize the hope of judicial review, which is that
it will protect us, or some group of us, from momentary democratic fervor. Like the threat, this
hope gets stated in many ways. Some see it as the protection of minorities, some as the defense of
constitutional rights, fundamental or otherwise.50 Others may simply say the Court will enforce the
Constitution against majority will.51

There is an enormous irony to the ideas of hope and threat, of course, in that the very same
problem that rests at the heart of the threat is what animates the promise or hope of judicial
review as well. At bottom, all the good roles that the judiciary might play, all these reasons we
might want judicial review, also rest on the assumption that in exercising its power the Court will
be standing up to today’s governors, that it will be exercising the same power that at other times
seems to pose a threat.

To be direct, whether one is attacking or applauding the Supreme Court, the central assumption
seems to be that the Court acts contrary to the majority’s will. When critics express
disenchantment with the Court, it is that the Court interferes with majoritarian politics. When
supporters praise the Court, it is for the very same thing: standing against the majority to
safeguard some cherished value.

It is this very assumption that requires challenging. And it is the positive approach of social
scientists that can help us in this. So much *1270 of what is thought about judicial review rests
on the notion that courts can, and do, act contrary to popular will. Yet, as we will see, there is
reason to doubt the very correctness of the assumption itself.

                    IV. Positive Analysis and the Problem with Hope and Threat

A positive approach can help us to see the difficulty with characterizing our system of judicial
review by either extreme, hope or threat. Looking through the lens of history reveals that both
extremes are overstated as a generalized description of judicial review. Then, looking to the
political economy of the judiciary, we can see why this is so.

                                            A. History

History provides no theory, but it can provide some perspective with which to cast an eye upon the
problem. Throughout history whenever the judiciary is active, it is attacked. Its attackers
commonly advance the threat story, and its defenders speak of the hope. Yet, both claims are
overstated dramatically.

There have been times when the Supreme Court’s exercise of judicial review seemed to fulfill its
hope, but they have been relatively few.52 This is not to deny the many cases where judicial review
is exercised, perhaps uncontroversially, in defense of a right or a minority group. But every
controversial period of sustained exercise in furtherance of judicial review’s hope can be matched
with startling instances of failure.53 For *1271 every Brown v. Board of Education,54 there is a
Dred Scott55 or a Plessy;56 for every United States v. Nixon57 or Youngstown Steel58 taking on the
President, there is a Korematsu59 failing to do so, and perhaps a Clinton v. Jones60 arguably doing
so in the wrong fashion. And so on.

Things are the same on the threat side of the ledger. Yes, there were times when the judiciary
seemed to stand in the way of popular will. The Lochner era is legendary;61 Franklin Roosevelt’s
Court-packing plan signaled another.62 But the legendary nature of those times alone should stand
as a signal that through the vast run of history the Court has not been seen as an obstacle to
democratic governance. As Larry Kramer points out, when the Court sticks itself into the gears of
democracy, typically it is the Court itself that inevitably pays the price.63

Most important-once again sounding a consistent theme here-even in the rare instances in which hope
or threat arguably have been germane depictions of what the Supreme Court was up to, often both
claims were being raised simultaneously. That is to say, one person’s hope typically is another’s
threat, complicating the story of judicial review enormously. The Lochner era may be the most
sustained period during which the Court was vilified, but at that time prominent voices were heard
in defense of the Court.64 Those voices applauded the role of judicial review in protecting
rights-property rights to be sure-safeguarded in the Constitution itself. During the Warren Court
era the Supreme Court acted vigorously to protect minority rights and First Amendment rights (often
conjoined); it was attacked for violating settled *1272 constitutional commands, but also for
rushing ahead of popular sentiment, thus interfering with the ability of the people to rule
themselves.65

It is this very difficulty of characterizing judicial review that should lead us to try to
understand it better. Most often, the Supreme Court’s exercise of judicial review poses neither a
hope nor a threat. And when the Court is active, rousing cries of threat, many see the hope,
suggesting the story always is a complex one. It is better to try to understand precisely what
motivates the Court, how we can expect it to act, and what occurs when it does. That is the benefit
of a positive approach.

                                            B. Politics

It should come as little surprise that neither hope nor threat are accurate characterizations of
the sustained role played by judicial review. What students of politics would tell us is that the
political milieu in which the Supreme Court and the judiciary operate serve as moderating forces,
constraining judges from posing too much of a hope or a threat. It thus behooves us to examine that
milieu, and use what we learn as a stepping stone to understanding how we should characterize the
function of judicial review, if not by hope or threat.

Our guide here largely will be social scientists, particularly those who have spent many years
studying judicial behavior. Just as in the legal community, many political scientists study the
judiciary. But where the concern in law often is normative-how ought judges to behave-in the social
sciences the questions are “how do they behave” and “why?” In order to answer these questions,
social scientists build models, and conduct empirical studies, seeking explanations of judicial
behavior and motivations. Some of this is explicitly about the behavior of judges in constitutional
cases; much of the rest can be extrapolated.

It probably bears stating at the outset that, like all academic work, this social science
literature has its limitations and difficulties. To cite an obvious example, empirical study
requires data that one can code and count. For that reason, social science studies tend to focus on
judicial *1273 votes rather than the language of the opinions themselves, a shortcoming whose
seriousness is obvious.66 The work of judges happens as much in the opinions as in the votes. For
Supreme Court Justices most of what is important occurs in the written opinion. At a deeper level,
political economists have had a difficult time modeling law, and perhaps they even have skepticism
about its operation. Yet their studies often seek to control for law to tease out some other
effect. Despite these limitations, social scientists have learned some things that shed light on
the practice of judicial review, information that deserves more attention than it receives from
normative legal scholars.

What the social science literature reveals is that judges, including Supreme Court Justices,
operate under many “political” constraints. This point about constraint is important because most
theoretical understandings of judicial review treat judges as relatively unconstrained. Both the
“hope” and “threat” understanding of judicial review rest on the assumption that judges simply can
declare what they want, and expect it to happen. To the extent the constraints identified by
political scientists are real ones-and the literature seems convincing in many regards-it explains
why neither hope nor threat provides an adequate explanation of what judicial review does.

Simply put, Supreme Court Justices do not decide cases on their own, uninfluenced by other forces.
Rather, they act in a complicated milieu, in which the preferences of many other actors will have
some bearing on how cases are decided.67 This is decidedly not how we think of things in the legal
academy. We think that life tenure does, and perhaps should, buy independence to decide cases
“according to law.”68 We recognize that fidelity to the rule of law may include some very different
ideological takes on what it is that the law demands. But normative scholars tend to assume that
judges regularly vote their “sincere” *1274 understandings of what the law requires, discounting as
rare any instances in which judges might vote “strategically,” i.e., resolve a case other than
according to an independent view of what the law itself requires. The political science literature
suggests the opposite: that strategic concerns do affect outcomes.69 Now, these positions can be
reconciled fairly easily. It is entirely possible that a judge intuitively incorporates these
competing forces, so that what is “sincere” and what is “strategic,” what is compelled by “law” and
what is not, are unalterably stewed together in the judge’s mind. Still, the political scientists’
effort to try and separate the two contributes mightily to understanding the forces that influence
judges, and thus to our understanding of the role played by judicial review.

We can begin with an example of constraint well familiar to legal scholars, even though it claims
little theoretical attention. Justices do not act alone, they sit in an aggregate called a Court.70
This very familiar but often overlooked reality has important consequences that tend to temper both
hope and threat. The set of views represented on the Court at any time is likely to span quite a
broad range. There is no regular pattern to appointments, but they tend to come every couple of
years or so.71 Lately, it has been longer. Thus, the membership on the Court is the result of a
political appointment process that itself spans a generation or more.72 In order to do anything,
the Court typically has to muster at least a majority.73 The variety of views represented on the
*1275 Court by Justices appointed over such a long period of time, and the need to gain a majority
of those Justices, are likely to have a moderating influence on the Court.74 That is not to say
that-as at present-a group of at least five cannot render important decisions. It is to say that
putting together five who vote together so consistently is going to be relatively rare, and far
rarer will be the occasions in which this five-vote coalition acts regularly against popular
political preferences. Undoubtedly there are counter-examples-the five-to-four majority of the
Lochner era suggests itself as a possibility75-but the social scientist would have us look closely
to see how typical these instances are, why they occur, and if they really are examples of the
Court so running against the grain as to make the threat or promise of judicial review a reality.

Second, Supreme Court judges sit atop a hierarchy of great breadth and diversity of views, and they
must manage it. There are only nine Supreme Court Justices (and one Supreme Court). There are
hundreds more federal circuit and district court judgeships.76 But that is just the tip of the
iceberg, because where constitutional law is concerned there are also fifty state judiciaries that
must be superintended.

Normative scholarship typically assumes all these lower court judges simply will comply with
Supreme Court rulings-at least for the most part.77 But social scientists see that matters are far
more complex. The *1276 Supreme Court simply cannot review all these cases. This fact presents
opportunities for outright defiance, to be sure, but perhaps more important it also presents a lot
of wiggle room for lower court judges who want to go their own way.78 Hope and threat both assume
judges are imposing their will upon a contrary majoritarian sentiment. But were that truly the
case, the lower courts would have to be in cahoots. More likely, lower court judges have their own
views-perhaps quite close to those of the communities in which they sit-and the farther the Supreme
Court wanders from those views, the more it will have to struggle to have its way over time.

To provide just one example, it is no secret that some of the most controversial Supreme Court
decisions at present are those involving federalism as a constraint upon Congress’s powers,
decisions like United States v. Lopez79 and United States v. Morrison.80 But how have those
decisions fared in the lower federal courts, where most of the work of judicial review ultimately
gets accomplished? Two scholars have studied just this question, and the title of one of their
articles says a great deal: What if the Supreme Court Held a Constitutional Revolution and Nobody
Came?81

*1277 This attention to the workings of the judiciary-the Supreme Court and the lower federal
courts-has only delayed our focusing on a far more important set of constraints that might
influence Supreme Court decisionmaking: the other branches of government and public opinion itself.
This subject is vast and complex, and so we necessarily must approach it in summary fashion.
Perhaps Alexander Hamilton should be our guide here. He explained famously in Federalist No. 78
that courts are the least dangerous branch because they lack the means to enforce their own
orders.82 Courts may declare all they wish, but the population must go along. One can overstate the
travail the Court faces; the rule of law obviously carries a great deal of force in this country.
The Supreme Court told Nixon to turn over the tapes; he did.83 The Justices renounced Little Rock,
Arkansas’ defiance of desegregation orders and Eisenhower sent in the troops, skeptical though he
might have been of Brown v. Board of Education.84 But even these examples show the dependence of
law on political support.

Defiance of Supreme Court decisions certainly has occurred. Lincoln defied judicial orders,
claiming it necessary to save the Union.85 Roosevelt was prepared to do so if the Court had ruled
against the government in the Gold Standard cases.86 In addition, compliance gets tricky if the
object of a court ruling is diffuse. The Nixon case had but one respondent. Bans on prayer in
school-frequently defied-have many.

From the Supreme Court’s perspective the problem is actually more complex: not only can the other
branches refuse to comply, they can attack the Court and the institution of judicial review itself.
Justices *1278 could be impeached, jurisdiction withdrawn, judicial budgets cut, courts packed.87
Are these responses legitimate?88 Views vary, and on some, such as jurisdiction stripping, shades
of gray might matter most. Are these moves likely? The point is that all have been threatened, some
have been used. True, in recent years resort to such tactics has diminished. But the potential is
there, and the Justices know it.89 If they get too far out of line-remember, we are thinking hope
and threat here-then they may well end up in serious trouble.

The claim here simply is that the Court’s dependence on the other branches to enforce decrees and
to refrain from attacking the institution of judicial review necessarily acts as a moderating force
for hope and threat. Whether this is true or not deserves far greater study than it has received,
but there is some tentative work that suggests this theory holds a fair amount of weight.90 Think,
in particular, of the present controversy over the Supreme Court. Was it an accident that the
Supreme Court’s activist burst of the last decade only began in 1994, when Republicans took control
of the Congress, thereby immunizing the Supreme Court from reprisals? Empirical evidence suggests
that it was not.91 *1279 Perhaps the Court is beholden to those in power, and perhaps it acts that
way. If so, hope and threat likely are grossly overstated.

The Court must reckon with one final force, as must the officials who might disregard or challenge
the Court: public opinion.92 This is the mightiest force of them all. The inhabitants of the
political branches are elected by us and work for us, true enough, but they are not always faithful
agents. They might attack the courts, only to find the public is not behind them, and thus be
forced to back off. This arguably is what happened in 1937.93 It also could be that politicians
content to leave well enough alone with the courts find that the populace is discontent in a way
that provides political opportunity. When politicians attack courts, it sometimes is open to
question whether they believe this is a sound idea or instead are pandering to constituents who
find it an appealing issue.

Public opinion serves as an important check, both on the Supreme Court and on those who would
attack or defy it. This is a huge subject, and one on which the empirical evidence is not yet
strongly developed. But the notion of public opinion as a check is not surprising. This is why
crises over judicial independence are relatively rare in American history, and why-as Kramer
says-when push comes to shove the public shoves the Court back into line.94

The sum total of all these forces with which the Justices must grapple is that the Court operates
on a leash-or perhaps a bungee cord provides a better analogy. The Court has some freedom to go its
own way. But if it strays too far away from these constraining forces, it *1280 inevitably is
brought back into place.95 There is room to roam, but it is not unlimited.96

This “bungee cord” theory of judicial responsiveness to political forces may seem problematic in
light of times in history where hope or threat appeared very real. One might, for example, still
want to point to the Lochner era or judicial resistance to the New Deal as threat periods. Perhaps
the Warren Court era still looks like a hope.

Yet, these may be the seeming exceptions that actually prove the rule. Looking at these periods in
enough depth to explain each precisely would require a large diversion from our path, but it is
worth pausing to gesture at some explanations. First, political scientists explain some of these
periods as a result of broader regime change.97 To put it simply, the problem is not so much courts
running contrary to popular opinion, but rather big shifts in democratic views. When the ship of
state changes course suddenly, the judiciary-which shifts more slowly because of the tenure of
judges-gets caught by the change of direction. What we then see in these periodic fights and
capitulations is the judiciary ultimately ducking its head so as not to be hit by the mast as the
boatcomes around. Whether this is a good explanation ultimately will turn on the evidence in any
given situation. To provide one example, this is what some scholars argue was happening in 1937:
the Depression led to a populace willing to support FDR’s vision of a changed balance in
federal-state relations, but the sitting Court was still buried in old ideas.

*1281 Second, sometimes appearances are misleading. Sometimes we think the judiciary is acting
contrary to popular will, or some of its detractors claim this is the case, when in fact there is
quiet popular support. The period surrounding Brown v. Board of Education is often identified as
one of the greatest periods in support of the hope argument. But there are excellent works of
scholarship that explain that popular sentiment favored what the Court was doing and national
interests were furthered by it, but that other dysfunctions in American government-such as strong
Dixiecrat control over the Senate-ultimately forced the Court to be the first mover.98
Similarly-and this is a topic we will return to shortly-despite discontent among many academics
with the Supreme Court’s federalism revolution, there is plenty of room to argue that strong
popular forces in society support what the Court is doing, if not in every jot and tittle, then at
least in broad strokes.99

One final point deserves attention before moving on: some political scientists argue that judges
are as unconstrained as normative legal scholars themselves seem to believe is the case. There is
prominent thinking in political science that judges most frequently vote their own preferences,
that judicial ideology is the dominant force in judicial decisionmaking.100 There certainly is data
that suggests this. From this data, some social scientists, called attitudinalists, conclude that
judges are unconstrained, that they do what they wish.101

Although attitudinalists likely are correct that judges have and exercise a certain amount of
discretion-after all, that is perfectly *1282 consistent with the bungee theory-still, those claims
likely are overstated. There are methodological reasons why attitudinalists might fail to observe
constraint. First, Supreme Court Justices simply can avoid having to decide cases in which they are
constrained by denying certiorari review in the first place.102 Existing attitudinal studies have
not taken this possibility into account. Second, it is in this attitudinal literature that the
practice of counting votes rather than looking at judicial decisions poses the greatest difficulty.
It really is not that much of a surprise that in the cases the Court does decide to take,
conservative Justices vote conservatively, and liberals liberally. What might matter when it comes
to constraint is not the direction of the vote but the strength of the opinion. If so, social
science studies would miss this.

One quick example shows how attitudinal studies are too quick to come to the conclusion that there
is no constraint. This past Term the Supreme Court decided two cases involving affirmative action
in higher education. In one of them, the Court struck down an affirmative action plan, with the
Justices voting five-to-four, largely as attitudinal studies would suggest.103 The problem, of
course, is that looking at that case alone, one would think (from an attitudinal perspective, or at
least from the only perspective attitudinalists can take) that affirmative action in higher
education had been prohibited. As luck had it, this Term also yielded a companion decision, which
makes clear that within certain bounds such plans were constitutionally acceptable.104 Of course,
in that second decision, attitudinal predictions fell through, as the conservative Supreme Court
reached a liberal result. For present purposes it is useful to note that the second decision was
not inconsistent with the first: it only looked like it if one focused solely on the vote, and not
the opinion.

To sum up, the Supreme Court is not as free to act, unconstrained by politics, as hope or threat
suggests. To the contrary, many forces operate on the Court, and they tend to have a moderating
influence. The question is whether we can take this observation, and from it build a theory of
judicial review.

                               V. The Separation of Law and Politics

If both hope and threat are over-characterizations, as they surely are, then what is it exactly
that judicial review can or does accomplish in American society?

*1283 Before turning to the affirmative argument about the role and function of judicial review, it
will be profitable at least to touch on one last problem that lays even deeper than hope and threat
in the minds of those who fret over the institution of judicial review. That problem is the
separation of law and politics. It is important to mention this problem because when we turn from
critique to affirmative theory, this is precisely where we will want to start.

To put it simply, when legal academics doing normative work search for a role for judicial review,
a bedrock principle is that they must find it in something that is different than “politics,”
something that we call “law.”105 This is a sort of first principle of judicial review.106 Judges
are expected to operate in the world of principle, not expediency; or, to put things differently,
they must stick to their knitting and do what judges do, deciding legal questions and not entering
into the realm of policy.

The problem with requiring law to be separate from politics-the root of much of the angst about
judicial review-is that what seems necessary may not be entirely possible. The entire preceding
discussion about influences on the judiciary suggests that law cannot be entirely separated from
the political world. As Robert Post explains so clearly, law and our political culture are
inevitably bound up in one another.107 Judges decide cases based on law, but they are selected in a
political way and, as we have just seen, their decisions must take root in a world of politics. The
political world invariably spills back on what judges are doing. One of the mysteries-and perhaps
wonders-of our legal system is that judge-made law, common law or constitutional, tends to
incorporate the felt necessities of the time. How it does so is complex, but surely we are all
familiar with the phenomenon.

This is only to say that the very bottom requirement of judicial review might, at least in the
terms offered by most academics, be elusive. It *1284 might be that law and politics are not so
easily cabined off one from another.108 If an airtight separation between law and politics is
essential, we might have a problem. But perhaps we can do a better job by coming at the question in
a different way.

                         VI. Separating the Constitution from Ordinary Law

In turning to development of an affirmative theory of judicial review, separation nonetheless may
be the right place to begin. It is true that separating law entirely from politics is extremely
difficult, if not impossible. The idea of separating the two may not even be coherent. And yet,
there may be something to the instinct of separation that is telling.

Perhaps the relevant separation ought to be between what the Constitution requires or prohibits,
and what political will immediately prefers. If living under a Constitution means anything, then it
seems that separating constitutional law from ordinary law is essential.109 In other words, we need
a way to determine whether the Constitution prohibits what government otherwise would seek to
achieve. Our Constitution embeds some set of permissions and prohibitions, some basic ground rules.
One might differ on what they are or how they are to be identified. An originalist may believe the
values are fixed for all time; a living constitutionalist might believe they evolve. A judicial
supremacist may believe the task of deciding belongs solely to the Supreme Court; a departmentalist
may believe each branch is left to figure this out for itself. But whatever the means, keeping
straight the difference between what the Constitution permits or forbids and what *1285 government
plans to do must be at the very heart of constitutionalism. If there is no line of separation, what
is constitutionalism about?110

This is-admittedly-a normative beginning to what promised to be a positive theory of judicial
review. What follows is entirely positive, and what has just been said is not, strictly speaking,
necessary to what follows. But this normative point-that constitutionalism means separating out
what the Constitution means from what government proposes to do-is the very basest of normative
claims, and one that would seem hard to deny. No constitutional theorist argues otherwise. Many do
not focus on this point adequately. But even those who eschew judicial review as a solution, and
even those who praise popular involvement in the interpretation and enforcement of the
Constitution, do not seem to be suggesting that the line between the Constitution and what
government seeks to do is unimportant or without meaning.

On the other hand, as obvious as this line of separation is to identify in theory, it is remarkably
difficult to achieve in practice. It is, of course, no answer to say that the Constitution will
perform this task itself. Even if interpretation were unnecessary, even if the Constitution’s text
were clear enough to demarcate what the governors may do and what they may not, we would need a way
to enforce the separation. But as we are all aware, even the originalists among us do not believe
the Constitution’s text is this clear.111 Thus, interpretation poses one challenge, and enforcement
another.

Similarly, it is unlikely that control over such separation in the hands of the political branches,
or the people, is going to be a successful strategy standing alone. It is perfectly natural for
those in power to conflate what they are doing or would like to do with what is permitted by the
Constitution. It is equally understandable if a supportive citizenry views the matter similarly.

It is important to stress the difficulty of achieving this separation because it renders some
prominent attempts to define a theory of judicial review problematic. For example, some scholars
today, discontent with judicial interpretations of the Constitution, apparently view popular
support for the government’s present agenda as enough to satisfy *1286 constitutional concerns, at
least on some issues. If the governors believe something is within the Constitution, and if the
people likewise find what the government is doing permissible under our fundamental charter, that
is all that must be resolved.112 If one wants to move courts and judicial review out of the
picture, then this is a perfectly logical line of argument to pursue.

But let us put courts to one side for the moment and confront the argument on its own terms. If one
believes the Constitution has meaning, and if one believes it controls the powers of government,
then it seems fair to observe that leaving it to those in power to decide if their conduct comports
with the Constitution simply is not likely to work. The problem is the extraordinary human capacity
for justification. Think of many commitments you make in your life, and how they come under
tension.113 It is Sunday, and you are committed to going to church on that day. But you are invited
to go on a once-in-a-lifetime venture of some sort, fishing, surfing, climbing, whatever. We have
all had experiences like this, and we know what happens. We make excuses. We’ll go to church
another day. This experience will be spiritual. We will pray in our own way.114

For this same reason, it is overly optimistic to argue, as some have done, that “the People” will
restrain their governors in such instances. This is because the very same forces that compel the
governors, especially in a well-functioning electoral government, are likely to impel the People to
believe that what the governors are doing is constitutionally permissible. At the least, this will
be true in the immediate present in which such questions arise. The People are as likely to be
swept away in the fervor that motivates the governors-or at least enough of the People that
government will feel itself justified. We have plenty of examples in American history, from
imprisonment of Japanese-Americans in camps during World War II to congressional laws prohibiting
flag-burning.115

*1287 Difficulty in solving this problem of separation has driven two of the most prominent
theories of judicial review,116 those of Bruce Ackerman and Alexander Bickel.117 Bickel was, and
Ackerman is, an astute student of politics, and neither believed that law and politics could be
entirely separate. Nonetheless, they saw the need for separating what is in the Constitution from
what is not, and their searches led them to judicial review as an answer. Both are worthy of
mention because even though they saw the right problem, their solutions ultimately asked more of
judges than our positive understanding of judicial behavior and constraint would suggest is
possible. For all their attention to politics, Ackerman and Bickel are normative theorists, and
their work presents examples of what not to expect out of a theory of judicial review.

Bruce Ackerman would place in the hands of judges the “preservationist” task of enforcing
constitutional guarantees against the governors when the governors overstep the bounds demarcated
by the Constitution.118 What the Constitution means, according to Ackerman, is determined by the
People in rare moments of “higher lawmaking.”119 Often this exercise of higher lawmaking results in
a constitutional amendment, but it need not. Ackerman offers an elaborate schema of how judges
should know when higher lawmaking has occurred. Once the People have spoken, then judges are
charged with ensuring the governors do not step outside their constitutional mandate.

*1288 With all due credit to Ackerman’s ambitious and thoughtful project, it asks more of judges
and “the People” than we can count on to make aconstitutional system work. Judges must have the
ability to recognize a moment of higher lawmaking.120 They then must know how to interpret it, even
if there is no text. Many commentators have offered similar critiques of Ackerman’s work.121

From the perspective of the prior discussion of judicial behavior, however, Ackerman’s theory is
even more problematic. Ackerman’s, like most normative theories of judicial review, depends
ultimately on judges standing up to the political branches, and to the People. Judges would have to
be superhuman to enforce a past set of commitments against a government set on its immediate
policy.122 In light of the political forces we have seen influencing judges, this ultimately is a
thin reed on which to stake constitutionalism and individual liberty.

Bickel’s judges, in contrast, were to be more proactive than Ackerman’s. Bickel believed the role
of judicial review was precisely to discover the deeper, fundamental constitutional values of the
People.123 Sometimes judges would arrive at these values after the People had done so, but in
Bickel’s world they often would do it in advance. Judges would be seers and prophets, who then by
force of example would educate the People to the truth.124

Bickel ultimately gave up on the idea as futile, and perhaps it is obvious why. This is the very
sort of thing that occasions giggles from *1289 skeptics about judicial review. Bickel himself
ultimately saw-consistent with the theory of judicial behavior and politics described here-that
judges could not take the people where they did not wish to be led.125 More to the point, people
like Anthony Kennedy and Ruth Bader Ginsburg may be fine Justices, but viewing them as seers and
prophets really is going a bit far.

But need we, like Bickel, give up on judicial review itself? Bickel was an astonishingly eloquent
man, and in a noteworthy line explaining why it is misguided to search for specific answers to
specific present day problems in historical materials regarding the framing of the Constitution, he
said “no answer is what the wrong question begets.”126 The question Bickel and those who have
followed him down the road of constitutional theory have been asking is “what should judges do.”
But, consistent with what we are discussing here, perhaps we can once more cast that question aside
and ask merely “what do constitutional judges do?”

                                 VII. The Role of Judicial Review

                                 A. Interpreting the Constitution

So now it is time finally to ask: what is it that judges are doing when they sit up there on that
high bench in those black robes, telling us what the Constitution means? There is an answer to this
question. It is neither complex, nor elegant, and it is likely to disappoint if one is looking for
something sophisticated. For it is an answer stunningly simple.

What are these judges doing when they say what the Constitution means?

They are telling us what the Constitution means, no more and no less. Not because they are
particularly smart, or just, or forward-seeing, though we might wish they could be all those
things, but because by definition that is their job description, and it is what they do. Whether
the power of the judges to say what the law is occurred by original *1290 design or evolution does
not matter one iota at this point. All that matters is that cases raising constitutional issues
come to the judiciary, and when they are decided the judiciary often is called upon to-and
does-make a pronouncement as to the meaning of the Constitution.

Before you come out of your chair, in anger, or disgust, or simple disappointment, hold on for just
one second. You might think this is begging the question, and that the pertinent question is:
should judges get to say what the Constitution means? But this is not question begging at all, it
is simple description. This is what a positive theory does.

                       B. What Comes Next: Fomenting Constitutional Dialogue

If you feel let down, however, be patient. This is only the beginning of the story. Although most
normative scholars focus on justifying the judicial act of interpretation, it is actually what
comes next that matters. All the action is downstream.

If what happened next, after the judiciary pronounced the meaning of the Constitution, is that we
all fell to obeisance and the question were not raised again, if we followed the Court’s
pronouncement in hushed murmurs, we would have a formidable problem on our hands. This is what so
troubles people: a very strong form of judicial supremacy.127 This leads to what is referred to as
the “countermajoritarian difficulty.”128 But this is hardly what happens.129

A more accurate depiction of the aftermath of a constitutional decision, especially one of any
import, is that there commences-if it *1291 had not begun already (and often it has)-a national
discussion about whether the Supreme Court got the meaning of the Constitution correct. This
conversation occurs in explicitly constitutional terms. People debate what the Constitution means,
and what it should be understood to mean.130

This idea of promoting constitutional dialogue is developed just ahead, for this is the role and
function of judicial review. Indeed, just ahead there is a turn from the positive to the normative.
The argument will be that promoting such a dialogue is an important function in a constitutional
democracy, one that achieves the separation of constitutional requirements from immediate political
preferences, and does so in a way that ensures that judicial review does not pose a threat to
democratic principles.131

But first it is important to describe what actually happens after a constitutional interpretation
is rendered, particularly a judicial ruling that seems to some at least to interfere with judgments
properly made by the democratic political process. This is, after all, largely a positive account.
What we will see is that judicial constitutional decisions set off a special process of national
conversation that ultimately registers widespread sentiments and keeps the judiciary within the
range that the bungee cord allows. Whether this is to be admired is a normative question. But
consider first whether as a positive account this description of constitutional dialogue is not
more accurate than frequent claims of judicial supremacy.

                                            1. Backlash

Studies both historical and empirical suggest that more often than not, once the Court hands down a
controversial decision, the most *1292 important (and sometimes strongest) immediate reaction is a
negative one. Occasionally the Court might hand down a decision that is received with
near-universal acclaim. Undoubtedly the Court also decides cases that fall like leaves in the
forest, unheard. But when the Court is heard, when dust is stirred up, and before it starts to
settle, mostly what occurs first, is opposition.

Michael Klarman, a historian who has looked into this phenomenon, calls it “backlash.”132 Political
scientists also have noticed how opinion in reaction to a Supreme Court decision tends to solidify
most among those who dislike it. Testing Bickel’s (and perhaps we should say Eugene Rostow’s)
theory that the Supreme Court can serve as a national educator, a shaper of opinion,133 those
political scientists have documented that rather than shaping opinion favorably, the Court’s
decision gives those who oppose it a reason to come together.134

This same phenomenon can be seen in the way constitutional decisions play out in the world of
action. Gerry Rosenberg’s book The Hollow Hope is a study of whether reformist judicial decisions
like Brown or Roe accomplish anything.135 The Hollow Hope is understood as a testament to how
little judicial review actually can change life on the ground. But Rosenberg also may have been
looking in the wrong place. Rosenberg looked in one direction, when the action might have been in
another. Even accepting that Rosenberg was correct about change along the lines the Court’s
decision mandates, there is no gainsaying the reaction in the other direction.136

*1293 We have seen this progression from decision to dissent in a variety of places, in responses
large and small. The Supreme Court says “do not pray in schools.”137 Prayer continues to break out,
appearing at football games, at student-led events, and “spontaneously” at school activities.138
The Supreme Court says “women have a right to choose to terminate a pregnancy, unimpeded during the
first trimester and only regulated for medical reasons during the second.”139 State laws are
passed, some of which try cleverly to surmount this legal obstacle, others of which take it head
on.140 One might debate whether these responses are appropriate, but at a purely descriptive level
we can observe that similar reactions are common following the law-pronouncing function of the
Supreme Court.

                                           2. Stickiness

What happens next, of course, is that after all is said and done, if the fight is fought and
pursued with focus, and attracts enough adherents, the law changes. Roe becomes Casey. Bowers
becomes Romer and then Lawrence. Brown becomes Croson, then Adarand, and then Grutter and Gratz.
Commerce Clause cases are overruled, only to be revived some sixty years later.

One concerned about judicial review might say, this is all fine and well, but majority will still
is frustrated. The legal landscape may change, but it takes time, sometimes a lot of it. And in
that period, a lot of people can suffer the ill effects of a constitutional ruling.

Constitutional rulings are in fact sticky, for reasons that bear notice.141 They might be overcome
by constitutional amendment, but that takes mustering an extraordinary majority. Alternatively,
they can be reversed by the Court changing its mind. Sitting Justices might do that, voting to
overrule themselves. More typically constitutional change *1294 occurs through the gradual
attrition of the Justices, and through presidential appointment of successors.

It is this very stickiness of judicial review that gives rise to controversy. For some period of
time, and in some fashion, judicial decisions affect outcomes and peoples’ lives.142 Critics of
judicial review find their dissatisfaction in this, though as we have seen their claims about
judicial review may well be overstated.

Although the stickiness of constitutional decisions causes controversy, it is instructive to see
what stickiness adds. Stickiness raises the stakes of the debate, and intensifies it, assuring that
when change occurs it is the result of a dialogue somewhat different than ordinary politics. Either
those who seek to overturn the Court must muster an unusually large majority of their citizens to
amend the Constitution, something that rarely has happened and even more rarely happened quickly
(though it has happened). Or, they must run the long race of politics, keeping the issue salient
for long enough to push it to a place on the agenda where it influences not only the appointments
process, but also public thought, so that people take the bench prepared to see change happen.

                                        3. Popular Opinion

One last fact ties up this story. It is drawn directly from the positive account of the political
milieu in which judicial review operates, of the constraint that constitutional judges face. This
fact gives lie to the claim that judicial review poses a grave threat, or a great promise. The fact
is that-as many studies have shown-when all is said and done, judicial outcomes tend over time to
come into line with popular opinion.143 The mechanism by which this occurs is imperfectly
understood, and there may be failures.144 Yet, there is enough in the story about how judicial
review operates in politics, not apart from it, that lets us understand this is a likely result.

*1295 Although the evidence is not perfect, a variety of studies have come to the conclusion that
the decisions of the Supreme Court do not long stay out of line with popular opinion.145 Those
decisions kick off a debate, to be sure. Even if the Court is in line with a majority or plurality
of citizens, if there is intense opposition the debate is inevitable. But as the debate runs its
course, the Court gradually aligns itself with the weight of popular opinion.

We have seen this occur often enough in recent years to find the phenomenon a familiar one. Think,
once again, of the controversy set off by Roe that brought us to Casey; or the controversy set off
by Brown that distilled popular opinion about racial segregation. Think of the Supreme Court’s
adventure to limit the death penalty, one that ultimately caused the Court to back away. In the
long run, as popular opinion shifts, judicial decisions and ultimately constitutional meaning shift
with it.

                        C. Constitutional Dialogue and its Normative Appeal

What should now be apparent is that there is not the sort of strong judicial supremacy supposed by
many who rue the threat of judicial review. It is not the case that judicial decisions are followed
without dissent, thereby putting an end to the matter. Instead, controversial decisions set off a
process. Dissenters speak up and organize. They run the race of politics, and if they are
successful their views become law. The Supreme Court does not buck public opinion for long, but
ultimately comes into step with it, at least on most matters.146

From a descriptive posture then, the Supreme Court is not the Supreme Ruler that poses a hope or a
threat; rather, the Supreme Court acts as a catalyst for debate, fostering a national dialogue
about constitutional meaning. Prompting, maintaining, and focusing this debate about constitutional
meaning is the primary function of judicial *1296 review.147 The claim is not that the country is
incapable of having a constitutional discussion absent a Supreme Court pronouncement, only that
constitutional dialogue seems the inevitable result of an important or controversial constitutional
decision. The debate over slavery is just one example of a national conversation about
constitutional meaning that, while helped along by a judicial decision, was not only a result of
judicial intervention.148 However, because the nature of a judicial decision is to cast something
in constitutional terms, when that decision is debated, the Constitution more typically plays a
central role.

Congressional debates, to pick a counter-example, less commonly display this constitutional nature,
even if that would be warranted.149 At least it seems that way, absent some empiricism that
suggests otherwise. Perhaps this is to be expected, even preferred, given the exact nature of
Congress’s task, i.e., doing the nation’s business. And when the Constitution does appear in
congressional debate, typically it is because of a question of how the Court will react much as
what the Constitution should mean.

Nothing here is intended to speak to the counterfactual-that is, what if there was no judicial
review. Thayer famously took the view that too much judicial review dampened broader constitutional
debate.150 Maybe this is so, maybe not. But in the world in which we live, the courts foment and
sustain constitutional dialogue. This is the central role of judicial review.

Although this largely has been a positive account, it is worth making the normative turn, if ever
so briefly. On examination, it is possible to see that the positive account points to a role for
judicial review that *1297 disarms complaints about judicial review. It ought to be clear from this
account that although the hope of judicial review may be overstated, the threat is overstated as
well. Critics challenge the hegemony of judicial interpretations of the Constitution, but this
drastically overstates the case. Many judicial interpretations raise no controversy.151 But when
they do, what occurs is not obeisance to the courts, but a healthy process of constitutional debate
and often constitutional change.

This process of constitutional dialogue and constitutional change matters, because this ultimately
ensures that the Constitution is owned by all of us.152 As Richard Fallon says, with regard to
constitutional legitimacy, “the first crucial point is the fact of widespread acceptance.”153 Some
judicial decisions do strike a national nerve, and when they do, they rouse opposition. That
opposition invites participation in the process of reaching consensus about constitutional meaning.
Participation can occur at great levels but also trivial ones, like sending a small check to an
interest group. The cumulative effect of this political activity concerning a constitutional issue
may be a shift and coalescing of public opinion.

However-and this is important-the Supreme Court’s responsiveness to public opinion is not to
immediate popular preference so much as to a body of opinion that endures over time. This is the
case precisely because constitutional law is sticky, changing only after an appropriately intense
national conversation occurs. The conversation can be short-lived but intense enough to generate an
immediate supermajority, such as when a constitutional amendment is passed in response to a court
decision. Or, constitutional law can change-as it more typically does-only after a long, drawn-out
process of political engagement.

The benefit of the process of constitutional change is that it serves the separating function, of
helping to determine and distinguish between immediate political preference and deeper commitments.
The stickiness of constitutional law means that most political change occurs only after a sustained
campaign during which public opinion can become educated and coalesce, a period of time over which
immediate popular preference becomes tested. Alternatively, new constitutional law comes *1298
about because immediate preference is so intense as to do what so rarely is done: forge a
constitutional amendment.154

                                VIII. Deciding Constitutional Cases

What is left is to make sense of the Supreme Court’s October 2002 Term. Doing so now should seem an
easier task, as much of what needs to be said has been already. To those accustomed to seeing the
Supreme Court only on the spectrum of liberal-conservative, the events of that Term may seem
perplexing. But in light of our positive theory of judicial review, and constitutional dialogue, an
easy explanation is at hand.

The theory is that, over time, Supreme Court decisions reach an equilibrium position with sustained
public opinion.155 When the Supreme Court resolves a case, it does not decide an issue with
finality, but by deciding kicks off a broader societal conversation about what the Constitution
should mean. That discussion runs over a period of time, during which issues inevitably will find
their way back to the Court. And as issues come back to the Court, judicial decisions and public
opinion tend to converge.

The mechanism for this process is not entirely clear, but it necessarily rests ultimately in the
constraints placed upon the Court by the political milieu in which judicial review occurs.156 We
cannot know how the Court gauges public opinion, or whether it even tries to do so consciously. But
we do know that the Court’s freedom of movement is not unlimited, and that the Justices seem aware
of this.157

In light of this theory, we stand a better chance of understanding the Supreme Court’s recent
decisionmaking. Nor is this explanation limited to the October 2002 Term alone. This Term was
perplexing, but *1299 preceding Terms roused equal controversy. We now should be able to see that
some of the recent complaints leveled at the Court have missed the mark.

                             A. Public Opinion and the Rehnquist Court

Despite strident claims in the academy that over the last decade the Supreme Court has been
deviating from popular preferences, there is reason to be skeptical of the claim. As we have seen,
such complaints about judicial review are frequent, the countermajoritarian problem lying
underneath both the hope and threat models of judicial review.158 But in light of the positive
explanation for judicial behavior, it would seem the burden of proof should rest with those who
would accuse the Court of deviating from popular opinion. In other words, looking at what the Court
does, rather than what it should do, suggests that-as we have now seen for some time-the Court more
likely will not be countermajoritarian. Thus, claims to the contrary require proving out.

There is good reason to think that, academic complaints aside, the Supreme Court’s federalism
revolution is perfectly consistent with popular opinion. Others have made this point.159 In 1994,
Republicans swept into power in the Congress on a Contract With America that had at its core the
notion of devolution, moving power from the federal government to the states. The Contract
continued a longstanding Republican agenda, one many thought transcendent as of the election of
Ronald Reagan. It is not at all clear the public disagrees with the Court’s revitalization of
federalism.

None of this is meant to suggest that the public understands the jots and tittles of federalism,
but it also is true that the federalism cases have thus far not challenged much of what the public
is likely to hold dear. If you disagree, hold your seats for a moment. The Eleventh Amendment cases
deprive people of real remedies, and there is reason to disapprove of those decisions. But prior to
the Supreme Court’s plurality decision in Union Gas, there was little basis for thinking states
could be sued for money damages.160 Which is to say, nothing much has *1300 changed. The direct
limits on congressional power, such as those apparent in cases like Lopez,161 Morrison,162 and
Printz,163 have the potential to wreck havoc with modern government, but they have not done so.
Obviously, the laws struck down mattered to some people, but there often were ways around the
specific roadblock placed by the Court. Moreover, as cases like the October 2002 Term’s
controversial decision in Garrett made clear, the Court’s decisions often only nullify a small part
of larger legislation.164 Though Garrett held the states themselves cannot be liable for a
violation of the Americans With Disabilities Act, the ADA remains intact.

As the decisions of the October 2002 Term indicate, the Court may have a good sense of its
boundaries in this area. Exemplary here is the decision in Hibbs.165 Hibbs raised the question
whether Congress could impose upon the states a money damages remedy for violation of the Family
and Medical Leave Act. There was good reason to think, in light of the decisions just discussed,
that the FMLA was vulnerable. Yet, the Supreme Court stepped back from the brink, in a six-to-three
decision authored by the Chief Justice. How can we explain this? Well, a beginning is that the FMLA
was an enormously popular law, one that was a poker chip in a presidential campaign. Messing with
the FMLA may have tuned a lot of people in to what the Court is about. Moreover, as Robert Post
explains, a contrary decision in Hibbs would have jeopardized the constitutionality of Title VII of
the Civil Rights Act of 1964.166 That would have created a lot of heat for the Court to handle. It
is easy, as a matter of constitutional politics, to see Hibbs as the decision of a Court avoiding
the brink.

This brings us to the Court’s two other surprising decisions, Lawrence167 and Gratz/Grutter (the
affirmative action cases).168 What we know about these decisions is that they were hardly the
Court’s first word on these subjects. To the contrary, in prior opinions the Court had staked out
its position, which then was subject to searching debate and political commentary.

With just this much said, it should be readily apparent that the Court’s decisions on issues of gay
rights and affirmative action are perfect examples of the theory here playing out. It certainly is
true that  *1301 prior to the decisions in Bowers v. Hardwick169 and Regents of the University of
California v. Bakke,170 issues of gay rights and affirmative action already had salience in
society. But those decisions set the terms of constitutional debate, and provoked extensive
societal soul-searching as to what the correct answer might be. The very stickiness of the
decisions energized movements in response to them, both among those opposed and those approving.
The movements in turn sparked and sharpened debate. After years of consideration, the Court ruled
again.

It should come as little surprise to learn that the positions taken by the Supreme Court in
Lawrence and the affirmative action cases fall squarely in the mainstream of evolving public
opinion.171 Moreover, while this idea of public dialogue influencing Supreme Court decisions is
pretty apparent in these high profile cases, it is worth noting the same phenomenon elsewhere. The
Rehnquist Court has been a difficult time for criminal suspects and habeas petitioners, and that
was the case long before 1994.172 The War on Drugs has eaten away huge chunks of the Fourth
Amendment, and the Rehnquist Court has rolled back many of the protections of habeas corpus
expanded during the Warren Court years. Yet, to the sensitive eye, the last few Terms have seen a
shift even in these typical “get tough” areas.

When we look to see why the Supreme Court has moved to the left in areas such as the Fourth
Amendment or habeas corpus, once again we can see deeper societal trends that help provide an
explanation. Lowering crime rates and public concerns about racial profiling seem to have had some
influence in the criminal area. How enduring this will be, especially in light of fears about
terrorism, remains to be seen. Similarly, societal concern about the death penalty has been fueled
by DNA testing and the revelations of numbers of innocent inmates who *1302 are on death row. This
in turn has raised questions in the public mind-questions that should have been lurking for a long
time-about the standards of competency of defense counsel. Taken together, we are seeing a
perfectly explicable shift in the doctrine.

This all may seem a bit too pat, and in a moment I will argue it is. Nonetheless, positive theory
deserves its due. Although there are rough edges to the theory, and deeply problematic aspects of
prediction, the explanation is enlightening, and comports with much of what we know. The Court did
not have to decide the cases the way it did, but we now have an explanation why it might have.

                            B. On “Positive” Explanations and Dialogue

Lest the explanatory force of this positive understanding of judicial behavior seem overstated, it
is important to acknowledge one seeming difficulty with the theory. The difficulty rests in a
question that might go like this: how certain can we be about how Sandra Day O’Connor (or perhaps
Anthony Kennedy) will vote? The positive theory advanced here rests in part on the assumption that
the Supreme Court ultimately comes into line with public opinion. But suppose O’Connor did not see
it the way she did on, say, affirmative action. Would the positive theory have lost its force? Even
attitudinalists have difficulty predicting how the median Justices will vote. Does the viability of
this theory all rest on the shoulders of these unpredictable Supreme Court Justices?

Before arguing that this theory does not rest on any single vote, it is worth observing that the
median Justices on the present Court seem consciously attuned to public opinion. We have seen this
in judicial statements, such as the remarkable plurality opinion in Casey v. Planned Parenthood.173
Although one might quibble with the plurality’s understanding of stare decisis in constitutional
cases-the dissent certainly did174-it seems hard to gainsay that the plurality understood that the
eyes of the public were on them, and that they acted accordingly. Extrajudicially, Justice O’Connor
has been quite explicit in pointing out that in the long run it is public opinion that accounts for
change in politics, and in judicial doctrine.175

*1303 But what we are after is a generalization, over different Supreme Courts and many years. Yes,
O’Connor and Kennedy seem in tune with public opinion in some ways, and maybe many Justices are,
consciously or not. But what about when the magic mechanism fails? What, to be blunt, if Justice
O’Connor had voted the other way in the affirmative action cases, if Justice Kennedy did not stand
up for gay rights, if the Court had missed the mark in Hibbs? Would the theoretical claim made here
still hold water?

The answer is that it would not have mattered at all. Because although the claim is that over time
the Court will not diverge from public opinion, there necessarily is not any claim about the
Court’s decisions at a specific time. In the world of Supreme Court decisionmaking and public
opinion, there is no “ultimately.” Lawrence was not the end of a debate, but only-as is true of any
decision-the beginning of its next stage. Polls show, unsurprisingly, that Lawrence caused some
hardening of opinion against gay rights.176 Gay marriage presents a new battleground. The debate
will reinvigorate, though its terms will shift, until it peters out in consensus.

Which is to say that, ultimately, there may be nothing other than dialogue.

Footnotes

a1

Jacob D. Fuchsberg Professor of Law, New York University School of Law. This Article originally was
given as the William Howard Taft Lecture on Constitutional Law at the University of Cincinnati
College of Law, and as the Jacob D. Fuchsberg Chair Inaugural Lecture at the New York University
School of Law. I am grateful for the comments and suggestions of those in attendance at both
lectures. Additional thanks are due to Jenna Bednar, Richard Fallon, Randy Kozel, and Robert Post
for their helpful comments on a draft of this paper, and to Christine Bateup for her substantive
help and her research assistance.


1

See Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of
Lochner, 76 N.Y.U. L. Rev. 1383 (2001) (describing popular attacks on the judiciary from 1895 to
1924 when conservative judges invalidated a range of social legislation).


2

410 U.S. 113 (1973).


3

347 U.S. 483 (1954).


4

Nothing said here is intended to be critical of those who challenge, praise, or condemn the Court
or its decisions. These commentators-often colleagues and friends-simultaneously perform a two-fold
function. They are scholars who are trying to define the terms by which judicial review ought to
occur. And they are advocates, whose strong voices should and likely do influence how real cases
are decided, and how the power of judicial review is wielded. But it can be difficult to
disentangle the two. Often when controversy is highest we most need to understand the object of
that controversy dispassionately. Yet, it is at those times that dispassion becomes most difficult,
and the advocate’s agenda most pressing.


5

Strictly speaking, the theory advanced here is not so much a positive one, as one drawing on
positive literature. Positive theories typically are subject to falsification, and the theory here
may be a bit too gangly to meet that criterion. But the aspiration is that large parts of the
theory can be subjected to testing.


6

There are more such voices of late, but still the numbers are small. See, e.g., Mark V. Tushnet,
Taking the Constitution Away from the Courts 175-76 (1999) (advocating a constitutional amendment
to abolish judicial review). Cf. Steven L. Winter, An Upside/Down View of the Countermajoritarian
Difficulty, 69 Tex. L. Rev. 1881, 1923-24 (1991) (arguing that “judicial review is itself an
institution so firmly established . . . that its continued existence is utterly unassailable.”).


7

In what follows, the expressions “conservative” and “liberal” are used as they commonly are in
today’s political parlance. By the end of this talk, it will be clear those terms are deeply
problematic, at least insofar as discussions of judicial review are concerned.


8

Or at least the second Rehnquist Court. See Thomas W. Merrill, The Making of the Second Rehnquist
Court: A Preliminary Analysis, 47 St. Louis U. L.J. 569, 573-74 (2003) (distinguishing between the
two Rehnquist Courts: “differences in personnel and rates of change in personnel; differences in
the number of cases heard by the Court; a shift in emphasis from cases presenting social [justice]
issues to cases presenting issues of constitutional federalism; differences in the number of 5-4
decisions and the willingness of the Justices to adopt important legal innovations in 5-4
decisions; and differences in the number of plurality decisions”).


9

See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down the Guns-Free School Zone
Act); United States v. Morrison, 529 U.S. 598 (2000) (striking down the civil damages remedy in the
Violence Against Women Act).


10

See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (striking down a provision of the Age
Discrimination in Employment Act that imposed monetary liability on states); Bd. of Trs. v.
Garrett, 531 U.S. 356 (2001) (striking down a provision of the Americans with Disabilities Act that
imposed monetary liability on states).


11

See, e.g., Teague v. Lane, 489 U.S. 288 (1989) (holding that habeas petitions that either rely on,
or ask the Court to establish, new rules of law should be dismissed at the threshold, subject to
only narrow exceptions); Herrera v. Collins, 506 U.S. 390 (1993) (holding that claims of actual
innocence based on newly discovered evidence are not sufficient to ground federal habeas relief,
absent an independent allegation of a constitutional violation); City of Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989) (holding that state and local affirmative action programs will be subject
to strict scrutiny); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (extending strict
scrutiny to federal affirmative action programs). For commentaries criticizing the Rehnquist Court
for failing to protect minority rights, see Erwin Chemerinsky, The Supreme Court, 1998 Term:
Foreword-The Vanishing Constitution, 103 Harv. L. Rev. 43 (1989); Erwin Chemerinsky, The Rehnquist
Court and Justice: An Oxymoron?, 1 Wash. U. J.L. & Pol’y 37 (1999); Girardeau A. Spann, Race
Against the Court: The Supreme Court and Minorities in Contemporary America (1993).


12

See, e.g., Alden v. Maine, 527 U.S. 706 (1999) (barring Fair Labor Standards Act claims against
nonconsenting states in state courts); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (articulating
a right of expressive association to protect the Boy Scouts from having to comply with a state law
barring discrimination against gays and lesbians in places of public accommodation); 44 Liquormart,
Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down as an impermissible restriction on
commercial speech a state law that prohibited advertisement of the price of alcoholic beverages);
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (striking down a federal appropriations law
that limited the arguments that could be made by those representing indigent clients as
impermissible viewpoint-based discrimination under the First Amendment). On the ubiquity of the
First Amendment, see generally Frederick Schauer, The Boundaries of the First Amendment: A
Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765 (2004) (examining the
magnetic force of the First Amendment). See id. at 1794 (“[T]he First Amendment’s magnetism leads
strategic actors to embrace it as easily as politicians embrace motherhood, the flag, and apple
pie.”).


13

531 U.S. 98 (2000).


14

See infra note 65 and accompanying text (discussing the close of the Warren Court era).


15

In relation to the mixed record of the Burger Court, see The Burger Court: The Counter-Revolution
That Wasn’t (Vincent Blasi ed., 1983).


16

Compare Furman v. Georgia, 408 U.S. 238 (1972) (holding that the administration of the death
penalty was arbitrary, capricious, and discriminatory, in violation of the Eighth Amendment), with
Gregg v. Georgia, 428 U.S. 153 (1976) (holding that the death penalty is not per se
unconstitutional), Proffitt v. Florida, 428 U.S. 242 (1976) (same), and Jurek v. Texas, 428 U.S.
262 (1976) (same).


17

Compare Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (approving busing as a
remedy to achieve integration), with Milliken v. Bradley, 418 U.S. 717 (1974) (disapproving
inter-district remedies for desegregation where there has been no inter-district violation).


18

Compare Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) (applying intermediate scrutiny to two
minority preference policies of the FCC that were mandated by Congress, and holding that the
policies did not violate equal protection principles), with Adarand Constructors, Inc. v. Pena, 515
U.S. 20 (1995) (holding that all racial classifications, whether imposed by federal, state, or
local governments, are subject to strict scrutiny and overruling Metro Broadcasting to the extent
inconsistent with this holding).


19

See Stone v. Powell, 428 U.S. 465 (1976) (holding that persons who claim to have been convicted on
evidence obtained in violation of the Fourth Amendment were not entitled to raise that claim in
habeas corpus proceedings); Wainwright v. Sykes, 433 U.S. 72 (1977) (holding that no constitutional
claim can be raised in habeas corpus proceedings if the convicted person or his or her counsel had
a fair opportunity to raise the claim at trial and failed to do so).


20

Planned Parenthood v. Casey, 505 U.S. 833 (1992).


21

See Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme
Court, 37 Ga. L. Rev. 893, 893 (2003) (observing that while before 1995 the Supreme Court had
struck down 134 congressional statutes since its inception, since 1995 the Rehnquist Court has
invalidated 33 different federal statutes).


22

See Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons
from the Past, 78 Ind. L.J. 73 (2003) (proposing the imposition of a supermajority requirement
before Justices can strike down congressional legislation); Shugerman, supra note 21, at 895 (“[A]
six-three voting rule would appropriately supplement the Justices’ individualized determination of
deference to Congress.”).


23

See William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 Stan. L. Rev. 87 (2001)
(criticizing the Court’s focus on the legislative record in federalism cases as a development that
improperly imports a model from administrative law jurisprudence to constitutional interpretation);
Evan H. Caminker, “Appropriate” Means-Ends Constraints on Section Five Powers, 53 Stan. L. Rev.
1127 (2001) (arguing that the means-ends test for congressional legislation enacted under Section 5
of the Fourteenth Amendment should be the same as the “rational relationship” test established by
McCulloch v. Maryland, and not the “congruence and proportionality” test that the Court has adopted
in recent cases); Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process,
and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707 (2002) (maintaining
that the Court’s “due deliberation” model imposing fact-gathering requirements in federalism cases
places unrealistic constraints on the legislative process in light of the common understanding of
Congress in social science literature); Stephen M. Griffin, Judicial Supremacy and Equal Protection
in a Democracy of Rights, 4 U. Pa. J. Const. L. 281, 283 (2002) (arguing that the Supreme Court
should move away from heightened scrutiny in equal protection jurisprudence, as “the political
branches have a distinct deliberative advantage over the judiciary in ensuring that racial
minorities are protected against discrimination”).


24

See infra note 93 and accompanying text.


25

See infra notes 45-47 and accompanying text.


26

See U.S. Const. amend. XIV, § 5.


27

See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (“Interpretation of the law
and the Constitution is the primary mission of the judiciary when it acts within the sphere of its
authority to resolve a case or controversy.”); United States v. Morrison, 529 U.S. 598, 617 n.7
(2000) (“[E]ver since Marbury this Court has remained the ultimate expositor of the constitutional
text.”); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (“Article III establishes a
‘judicial department’ with the ‘province and duty . . . to say what the law is’ in particular cases
and controversies. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803). The record of history shows
that the Framers crafted this charter of the judicial department with an expressed understanding
that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them,
subject to review only by superior courts in the Article III hierarchy.”).


28

See Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 Harv. L. Rev. 4, 12
(2001) (“[I]t was the people themselves-working through or responding to their agents in the
government-who were responsible for seeing that the Constitution was properly interpreted and
implemented. The idea of turning this responsibility over to judges was unthinkable.”); see also
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7 (2004).


29

Cass R. Sunstein, The Partial Constitution 9 (1993) (“the Constitution is aimed at everyone, not
simply the judges. Its broad phrases should play a role with legislators, executive officials, and
ordinary citizens as well.”); Tushnet, supra note 6, at ch. 2 (examining “Doing Constitutional Law
Outside the Courts”); Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People:
Juricentric Restrictions on Section 5 Power, 78 Ind. L.J. 1, 43 (2003) (exploring the Rehnquist
Court’s understanding of Section 5 of the Fourteenth Amendment resting on the claim of exclusive
authority to interpret the Constitution, which they term the “juricentric Constitution,” and
arguing that “Congress must self-consciously address” the Court’s denial “that Congress plays any
role in articulating constitutional understandings.”).


30

Kramer, supra note 28, at 163 (“Popular constitutionalism is not some quaint curiosity from the
Founders’ world. It is a vital principle that has been part of our constitutional tradition all
along. To deny that there are spaces outside the Court where constitutional decisions are made,
decisions to which judges are subservient, is a radical and unprecedented idea.”); Tushnet, supra
note 6, at 194 (advocating a “populist constitutional law,” which entails that “the public
generally should participate in shaping constitutional law more directly and openly . . . [and]
reclaim [the Constitution] from the courts.”).


31

See, e.g., Robert H. Bork, The Supreme Court Needs a New Philosophy, Fortune, Dec. 1968, at 138,
140 (“[M]en are likely to prefer legislatures more representative of contending interest groups,
more mindful of social complexities, and, most important, more subject to control-legislatures,
that is, whose members can be voted in and out of office.”).


32

See, e.g., Robert H. Bork, The Tempting of America 176 (1990) ( “[T]here is a historical
Constitution that was understood by those who enacted it to have a meaning of its own . . . . It is
that meaning the judges ought to utter.”); John Harrison, Originalism and Historical Truth: Forms
of Originalism and the Study of History, 26 Harv. J.L. & Pub. Pol’y 83, 89 (2003) (advocating a
form of originalism he terms “Originalism Mark II,” which posits that “an authoritative text should
be understood as of the time that the text was written instead of some other time, like the
present”); Stephen Presser, Recapturing the Constitution 21 (1994) (arguing for a return to
constitutional originalism by recapturing “the religious and moral basis for the Constitution”).


33

See Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. Pa. L. Rev. 1, 21-25
(1998) (discussing how the Warren Court embraced both originalism and living constitutionalism as
each suited the needs of the time).


34

See, e.g., Bork, supra note 31, at 138, 140 (describing the Warren Court’s failure to explain and
justify its decisions as a “lack of ‘craftsmanship,”’ and suggesting that wide belief existed that
some Justices on the Court “decide cases not according to the criteria they cite but according to
their social and political sympathies”); Lino A. Graglia, Disaster By Decree 17 (1976) (criticizing
the Court’s desegregation efforts following Brown, and concluding that “[w]hat the country needs to
understand today in regard to compulsory integration is that, not only has it been imposed by the
Supreme Court and not by the Constitution, but it has been imposed by the Court most improperly”);
James Jackson Kilpatrick, A Very Different Constitution, 21 Nat’l Rev. 794, 796 (1969) (“[T]he
grave offense imputed to the Warren Court in its handling of the Constitution [is that] [t]he Court
did not interpret; it amended.”).


35

See Steven G. Calabresi, A Government of Limited and Enumerated Powers, 94 Mich. L. Rev. 752,
830-31 (1995) (arguing that “the Supreme Court is institutionally competent to enforce
constitutional federalism” and should continue “on its way down the Lopez path”); Steven G.
Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373, 1375-82
(1998) (contending that judicial intervention in federalism cases does not implicate the
countermajoritatian difficulty and should continue); Charles Fried, Saying What the Law Is: The
Constitution In The Supreme Court 46-47 (2004) (“The recent federalism decisions are best
understood as assertions that the Constitution does embody a conception of the relation between
state and national power; that that conception can find an expression in constitutional doctrine,
and that when cases come before it implicating that doctrine it is ‘the province and the duty of
the Court to say what the law is.”’); Saikrishna B. Prakash & John C. Yoo, Questions For the
Critics of Judicial Review, 72 Geo. Wash. L. Rev. 354, 361 (2003) (asserting that “[i]f judicial
review is conceded to exist, then it must exist over federalism questions as well as individual
rights . . . “); Lino A. Graglia, The Myth of a Conservative Supreme Court: The October 2000 Term,
26 Harv. J.L. & Pub. Pol’y 281, 292 (2003) (“There is force in the argument that, since everyone
agrees that the Constitution created a federal government of limited powers, it is the duty of the
Court to find and enforce some limits.”).


36

Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture,
Courts and Law, 117 Harv. L. Rev. 4 (2003) (focusing on Hibbs, Grutter, and Lawrence).


37

Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003).


38

United States v. Lopez, 514 U.S. 549 (1995).


39

United States v. Morrison, 529 U.S. 598 (2000).


40

Gratz v. Bollinger, 539 U.S. 244 (2003).


41

Grutter v. Bollinger, 539 U.S. 306 (2003).


42

539 U.S. 558 (2003).


43

478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).


44

Liberals, who had prepared for the possibility that the Court would strike down the affirmative
action plans in both Gratz and Grutter, were euphoric, if slightly shocked, following the
decisions. Gary Orfeld, founding co-director of the Civil Rights Project at Harvard University,
described the Court’s decision in Grutter as “remarkable” given that “it’s a much more conservative
[Court] than the one which upheld Bakke.” Simon W. Vozick-Levinson, High Court Upholds Affirmative
Action, Harv. Crimson, June 23, 2003, available at
http://www.thecrimson.com/article.aspx?ref=348443. Theodore Shaw, associate director-counsel of the
National Association for the Advancement of Colored People, described the decision as “fortunate,
given the current conservative makeup of the court.” Jeremy Berkowitz & Tomislav Ladika, Supreme
Court Upholds Affirmative Action, Rejects Point System, Mich. Daily, June 24, 2003, available at
http:// www.michigandaily.com/vnews/display.v/ART/2003/06/24/3ef84fd007bcc?in_ archive=1.
Nonetheless, while applauding the decisions of the Court, liberals continued to warn of the threat
posed by the Rehnquist Court, particularly if President Bush is able to make an appointment to the
Court during his presidency. For example, Kim Gandy, president of the National Organization of
Women, was quoted as saying: “The 5-to-4 split in Grutter is a brutal reminder of the Court’s
delicate balance and what is at stake with the next resignation of the Court.” Jim Lobe, U.S.
Rights: U.S. High Court Upholds Affirmative Action, Inter Press Service, June 23, 2003.
Conservatives, in contrast, were critical of the Court’s decisions. Grutter and Lawrence were
described as “[a]d hoc policy judgments” by former Reagan administration official Michael Carvin.
Jan Crawford, High Court Rulings Stun the Right Decisions on Race, Gays Show Justices’ Knack for
Surprise, Sun-Sentinel, June 29, 2003, at 4A. Clint Bolick, of the libertarian Institute for
Justice, described the ruling in Grutter as “a tragedy for all Americans.” David G. Savage, Supreme
Court Rulings: Court Affirms Use of Race in University Admissions, L.A. Times, June 24, 2003, at 1;
see also Pat Robertson, Today Show (NBC Television Broadcast, July 16, 2003) (“They have distorted
the Constitution. They have perverted the law. They’ve entered into the arena on the side of evil .
. . .”). Sandy Rios of Concerned Women of America (CWA) commented: “If there’s no rational basis
for prohibiting same-sex sodomy by consenting adults, then state laws prohibiting prostitution,
adultery, bigamy, and incest are at risk . . . . This decision is further evidence that ‘We the
People’ have virtually lost the right to govern ourselves because of judicial activists who think
they have a right to create law.” CWA Says: Supreme Court Wrong to Declare a Right to Sexual
Perversion, U.S. Newswire, June 26, 2003. Ken Connor, president of the Family Research Council,
said that “[t]his kind of activism undercuts the democratic process.” Joan Biskupic, Decision
Represents an Enormous Turn in the Law, USA Today, June 27, 2003, at 5A.


45

See John Harrison, The Role of the Legislative and Executive Branches in Interpreting the
Constitution, 73 Cornell L. Rev. 371, 372-73 (1988) (arguing that the President and Congress are
not legally obliged to follow the courts’ constitutional interpretation of laws where those
interpretations exist as precedents rather than judgments in specific cases, as “[t]he argument
that the Constitution allocates the interpretive power to the courts is wrong.”); Gary Lawson &
Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267,
1268 (1996) (“It is emphatically the province and duty of the President to say what the law is,
including the law embodied in the Federal Constitution.”); Michael Stokes Paulsen, The Most
Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (“The power
to interpret law is not the sole province of the judiciary; rather, it is a divided, shared power
not delegated to any one branch but ancillary to the functions of all of them within the spheres of
their enumerated powers.”). Also note Steven Calabresi’s criticism of five-to-four majorities on
the Supreme Court that Caminker echoes supra, in note 22: “In my judgment, the biggest problem
raised by our practice [of judicial review] is that it is too easy for five to four Supreme Court
majorities to invalidate State laws, given that the Constitution prescribes bicameralism and
presentment before national lawmaking should occur.” Steven G. Calabresi, Caesarism,
Departmentalism, and Professor Paulsen, 83 Minn. L. Rev. 1421, 1429 (1999).


46

Both liberal scholars in the Lochner era and conservative scholars in the Warren Court era advanced
arguments based on the harm that can be caused by judicial review. E.g., compare J. Allen Smith,
The Spirit of American Government 103 (1907) (denouncing the power of judicial review as a
“dangerous innovation” as it gave the judiciary power to thwart the people’s will), Louis B.
Boudin, Government by Judiciary, 26 Pol. Sci. Q. 238 (June 1911) (arguing that the courts had
“reached the condition of ‘judicial despotism’ . . . . The essence of despotism is the right of a
few to make the laws or to control their making, without being responsible to the people.”), and
Gilbert E. Roe, Our Judicial Oligarchy 197 (1912) (accusing the judiciary of “using the great
powers of the judicial office to block and thwart the public will” and claiming that “[w]hile the
people have been laying the foundation for democracy, the courts have been building an
oligarchy.”), with Bork, supra note 31, at 138 (“What, after all, justifies a non-elected committee
of lawyers in overriding the policies of the elected representatives of the people?”). See also
Editorial, Court’s ‘Legislation’ Undermines Democracy, Augusta Chron., July 10, 2003, at A4 (“The
Supreme Court makes a very poor legislature. Its broad pronouncements of new rights restrict our
collective right to create the kind of society we prefer through democratic means.”). See generally
Barry Friedman, The Birth of an Academic Obsession: The Countermajoritarian Difficulty, Part Five,
112 Yale L.J. 153 (2002); Friedman, supra note 1, at 1428-47.


47

Arguments based on the hope that judicial review offers were made by both conservative scholars in
the Lochner era and by liberal scholars in the Warren Court era. During the Lochner era,
conservative organizations promoted “Constitution Day” in order to promote public awareness of the
role of the courts “in providing a barrier against unrestrained democracy that could threaten
personal and economic liberties.” William G. Ross, A Muted Fury: Populists, Progressives, and Labor
Unions Confront the Courts, 1890-1937 233 (1994). Arnold Paul also notes that “by the 1890s it was
a root principle of American conservatism that in a time of social crisis, when rampant populism
might threaten the established order, the Supreme Court must act as counterweight to election
returns, as defender of minority rights against majority rule.” Arnold M. Paul, Conservative Crisis
and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 229 (1960). Cf. Alexander M. Bickel, The
Least Dangerous Branch: The Supreme Court at the Bar of Politics 70 (2d ed. 1986) (describing the
Court’s role in judicial review as “defender of the faith, proclaimer and protector of the goals”);
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980) (proposing the
“representation-reinforcing” theory of judicial review, in which appointed judges “are comparative
outsiders in our governmental system” and are in a position “objectively to assess claims . . .
that either by clogging the channels of change or by acting as accessories to majority tyranny, our
elected representatives in fact are not representing the interests of those whom the system
presupposes they are.”); Philip B. Kurland, Toward a Political Supreme Court, 37 U. Chi. L. Rev.
19, 45 (1969) (describing the Supreme Court’s primary function to “protect the individual against
the Leviathan of government and to protect minorities against oppression by majorities”).


48

This historical contingency of support for the Court was also recognized by some liberal
commentators during the Lochner era. See George W. Alger, The Courts and Legislative Freedom,
Atlantic Monthly, March 1913, at 345 (“Twenty-five to fifty years ago there were time-honored
phrases which were applied by lawyers with more or less popular approval to the American judiciary.
The courts were the ‘Palladium of our liberties,’ the ‘Guardians of the Ark of the Covenant.’
To-day the public attitude has largely changed. These phrases are no longer current. The people are
dissatisfied with the guardians, and in some quarters there is dissatisfaction with the ark
itself.”).


49

Bickel, supra note 47, at 17. For those versed in constitutional theory, undoubtedly Bickel’s
famous, if infelicitous, expression for this problem-the “counter-majoritarian factor”-comes to
mind. But it is good to avoid that phrase for a reason worth mentioning. Despite the fact that the
phrase has certainly caught on, the problem Bickel described was so imprecise as to be maddening.
Is the complaint that judicial review interferes with the will of the majority? With the majority’s
representatives? With the actions of any aspect of democratic governance? Historically it means all
of these and more, because-as explained earlier-the complaint tends to be tailored to whatever the
Court is doing at the moment. Thus, while its lack of precision is frustrating, its core sentiment
is not, and that is where the focus here rests. Judicial review feels, to those who see it as a
threat, as an impediment to the people governing themselves as they might like.


50

See, e.g., Ely, supra note 47, at 8 (conceiving judicial review as a way of “protecting minorities
from majority tyranny that is not a flagrant contradiction of the principle of majority rule”);
Bickel, supra note 47, at 109 (“the Supreme Court . . . is an institution charged with the
evolution and application of society’s fundamental principles”); Terrance Sandalow, Judicial
Protection of Minorities, 75 Mich. L. Rev. 1162, 1184 (1977) ( “[C]onstitutional law must now be
understood as the means by which effect is given to those ideas that from time to time are held to
be fundamental in defining the limits and distribution of governmental power in our society.”).


51

See, e.g., 1 Bruce Ackerman, We the People: Foundations 10 (1991) ( “[T]he courts serve democracy
by protecting the hard-won principles of a mobilized citizenry against erosion by political elites
who have failed to gain broad and deep popular support for their innovations.”); Larry Alexander &
Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1380
(1997) (arguing that one of the reasons for judicial supremacy under a Constitution is “to remove a
series of transcendent questions from short-term majoritarian control”); Jesse Choper, Judicial
Review and the National Political Process 68 (1980) (“Since, almost by definition, the processes of
democracy bode ill for the security of personal rights and, as experience shows, such liberties are
not infrequently endangered by popular majorities, the task of custodianship has been and should be
assigned to a governing body that is insulated from political responsibility and unbeholden to
self-absorbed and excited majoritarianism.”).


52

The lower courts are an entirely different matter altogether. In reviewing Mark Tushnet’s book
Taking the Constitution Away from the Courts, Erwin Chemerinsky makes the valuable point that those
who attack judicial review often focus solely on the Supreme Court. It is possible that even when
the Supreme Court is under attack, the lower courts exercise the power of judicial review to remedy
countless lower-profile constitutional violations, providing support for the “hope” side of the
ledger. See Erwin Chemerinsky, Losing Faith: America Without Judicial Review?, 98 Mich. L. Rev.
1416 (2000) (book review). This is an extremely important point, although-in the context of the
present discussion-it is possible those courts leave just as many unremedied.


53

See Tushnet, supra note 6, at 129-53, 154 (“[T]he historical record and considerations of
constitutional theory and structure suggest that judicial review does not make much difference one
way or the other.”); Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?
338 (1991) ( “U.S. courts can almost never be effective producers of significant social reform. At
best, they can second the social reform acts of the other branches of government. Problems that are
unsolvable in the political context can rarely be solved by courts.”); Michael J. Klarman, From Jim
Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 450 (2004) (“When a
minority group suffering oppression is most in need of judicial protection, it is least likely to
receive it. Groups must command significant social, political and economic power before they become
attractive candidates for judicial solicitude.”).


54

347 U.S. 483 (1954).


55

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).


56

Plessy v. Ferguson, 163 U.S. 537 (1896).


57

418 U.S. 683 (1974).


58

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).


59

Korematsu v. United States, 323 U.S. 214 (1944).


60

520 U.S. 681 (1997).


61

See, e.g., Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 Int’l J. Const. L.
1, 4-15 (2004) (describing three different meanings of the Lochner era in American constitutional
thought, which equate Lochner with constitutional crisis); Howard Gillman, The Constitution
Beseiged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 10-11 (1993) (arguing that
the Lochner era is not best understood as a “sudden corruption of the law and the judicial
function,” but as a story of “how the judiciary’s struggle to maintain the coherence and integrity
of a constitutional ideology averse to class politics was complicated and ultimately derailed by
the maturation of capitalist forms of production and the unprecedented efforts of legislatures to
extend special protections to groups that considered themselves vulnerable to increasingly coercive
market mechanisms”).


62

See William E. Leuchtenberg, The Supreme Court Reborn: The Constitutional Revolution in the Age of
Roosevelt 82-162 (1995) (describing President Roosevelt’s motivations in proposing the
Court-packing plan, including the growth of popular anti-Court sentiment).


63

See Kramer, supra note 28, at 207.


64

See Paul, supra note 47 (containing a variety of statements from prominent lawyers and judges in
support of the Lochner era jurisprudence and the protection of property rights).


65

See Alpheus Thomas Mason, The Supreme Court: Palladium of Freedom 169-70 (1962) (“The ill effects
and shortcomings, if such there be, of the Warren Court’s decisions can be removed by an ordinary
act of Congress. It is under attack for responding to public aspirations, perhaps in moving ahead
of them, as in the desegregation decisions.”); Alexander M. Bickel, Close of the Warren Era, New
Republic, July 12, 1969, at 13, 15 (“A Court . . . tends to attack problems at retail, in the
smallest possible compass, illuminating ultimate principles in the glare of its headlights, as it
were, but seldom speeding ahead . . . . Speed, however, and the confident, single-minded imposition
of solutions to problems of the first magnitude-these have been the hallmarks of the Warren
Court.”); Term’s End for the Court, N.Y. Times, June 28, 1964, at E8 (warning of the danger that
the Court is “moving too swiftly,” “getting too far ahead of what the country accepts as right and
just,” and “seeking to legislate in its own right”).


66

Reflecting this tendency to focus on judicial votes rather than outcomes, see Theodore W. Ruger et
al., The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting
Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150, 1162 (outlining the results of applying two
different methods to predict the outcome of every argued case during the Supreme Court’s 2002 Term.
“Because our study does not account for this content [of judicial decisions], there is much it does
not, and cannot, say about the judicial process.”).


67

Lee Epstein & Jack Knight, The Choices Justices Make 17 (1998) ( “[W]e cannot fully understand the
choices justices make unless we also consider the institutional context in which they operate.”).
The argument here is elaborated upon in Barry Friedman, The Politics of Judicial Review
(unpublished manuscript, on file with author).


68

See Gordon Bermant & Russell R. Wheeler, Federal Judges and the Judicial Branch: Their Independence
and Accountability, 46 Mercer L. Rev. 835, 839 (1995) (“It is the essence of good judicial process
that it is uncontaminated by pressures for decision beyond those presented by the particular facts
and the applicable law. The salary and tenure protections of the Constitution were intended to
secure decisional independence. It is the decisional independence of federal judges that the nation
relies on for the emergence of its ‘unlikely heroes’ on the bench.”).


69

Epstein & Knight, supra note 66, at 10 (presenting the strategic account of judicial
decisionmaking, which recognizes that “justices are strategic actors who realize that their ability
to achieve their goals depends on a consideration of the preferences of other actors, the choices
that they expect others to make, and the institutional context in which they act”).


70

See Forrest Maltzman et al., Crafting Law on the Supreme Court: The Collegial Game 149 (2000)
(presenting a strategic model of interaction between Supreme Court Justices as a “collegial court
game” and arguing that “preferences alone do not dictate the choices justices make. Instead, their
decisions result from the pursuit of their policy preferences within constraints endogenous to the
Court. The constraints primarily stem from intra-institutional rules on the Court, which give the
Court its collegial character”); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many:
Adjudication in Collegial Courts, 81 Cal. L. Rev. 1, 56 (1993) (“Appellate adjudication is a
collegial enterprise, in which agency of performance lies with the court, not with the judges as
individuals.”).


71

Terri Jennings Peretti, In Defense of a Political Court 100 (1999) ( “On average, a vacancy on the
Court occurs every 1.82 years, giving a single-term president 2.2 appointments and a two-term
president 4.4 appointments.”).


72

See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev.
1045, 1076 (2001) (“Parties who control the presidency install jurists of their liking-given
whatever counterweight the Senate provides. Those jurists in turn create decisions which are
embodied in constitutional doctrine and continue to have influence long after those who nominated
and confirmed the jurists have left office. One might think of this as ‘counter-majoritarian,’ but
in fact, it is not. It represents a temporally extended majority rather than a contemporaneous
one.”).


73

See Gregory A. Caldeira et al., Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L.
Econ. & Org. 549 (1999) (presenting evidence that Supreme Court Justices vote to grant or deny
certiorari in a manner that is inconsistent with the Justice’s most preferred ideological position
where their views are not supported by a majority of the Court).


74

See Peretti, supra note 71, at 100 (“Given turnover on the Court and a membership that has passed
the partisan and ideological litmus test applied by elected officials, it can be concluded that the
values of the justices mirror and certainly lie within the range of those values currently or
recently receiving official representation in other branches of government.”).


75

The present, despite a flood of scholarship suggesting the contrary, does not. Scholars today
suggest the Supreme Court is trumping popular political preferences. See, e.g., Griffin, supra note
23 (arguing that over the last twenty years the Court has acted to limit the constitutional rights
of minorities, despite the repeated attempts of Congress to expand the rights protected under the
Fourteenth Amendment). Yet, at the least, it seems plain it is not interfering with the preferences
of those presently in power. See infra notes 155-72. See Barry Friedman & Anna L. Harvey, Electing
the Supreme Court, 78 Ind. L.J. 123 (2003) (explaining that present activism represents a
conservative Court striking liberal enactments at a time when Congress is in conservative hands).


76

See 28 U.S.C. §§ 44, 133 (1993 and Supp. 2003) (authorizing the President to appoint 179 circuit
court and 663 district court judges).


77

See Alex Kozinski, The Many Faces of Judicial Independence, 14 Ga. St. U. L. Rev. 861, 867 (1998)
(“Lower courts follow higher courts, and you’re supposed to do what the big boys and girls upstairs
tell you to do.”); Sanford Levinson, On Positivism and Potted Plants: “Inferior” Judges and the
Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 847 (1993) ( “‘Inferior’ judges know
their place. . . which is the enforcement of the decisions of superiors, whatever their own
views.”); M.B.W. Sinclair, Statutory Reasoning, 46 Drake L. Rev. 299, 364 (1997) (“A judge is . . .
bound by the prior decisions of the courts superior to her court in the jurisdiction’s hierarchy;
that’s vertical stare decisis. It is just what it means to have an hierarchical structure in the
court system. Although it includes the control of horizontal stare decisis, it is more powerfully
binding because, as a matter of social power, the reasons of higher courts play very strongly in
lower courts. Reasons, policy judgments, and even dicta can thus have vertical precedential
power.”).


78

See, e.g., McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule
of Law, 68 S. Cal. L. Rev. 1631, 1646 (1995) (“Doctrine emerges as part of the equilibrium
interaction among the Supreme Court and the lower courts, each acting to maximize its own
preferences or ideology. . . . Judges in the lower courts are . . . strategic actors facing a
trade-off between pursuing a personal policy agenda and seeing some of their decisions reversed by
a higher court, and adopting the best available complying doctrine, without fear of successful
appeal.”); Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of
Supreme Court-Circuit Court Interactions, 38 Am. J. Pol. Sci. 673, 690-694 (1994) (finding in the
context of search and seizure cases that while “the courts of appeals were highly responsive to
changing policy trends on the Supreme Court,” nonetheless this “did not prevent entirely the judges
on the courts of appeals from pursuing their own policy preferences.”). Accord Balkin & Levinson,
supra note 72, at 1073-74. Because the federal docket is so large, lower court judges are given-or,
perhaps more accurately, take-the practical power to float all sorts of new possibilities in
constitutional interpretation. These ostensibly “inferior courts” often prove to be testing grounds
for what will later be recognized as constitutional revolutions.


79

514 U.S. 549 (1995).


80

529 U.S. 598 (2000).


81

Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court
Held a Constitutional Revolution and Nobody Came?, 2000 Wis. L. Rev. 369, 371 (2000) (undertaking a
survey of lower court decisions subsequent to United States v. Lopez and finding that “lower courts
have tended to limit Lopez to its facts, rather than using it as a springboard to enforce a more
robust theory of federalism.”); see also Brannon P. Denning & Glenn H. Reynolds, Rulings and
Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 Ark. L. Rev.
1253, 1256 (2003) (extending their analysis of lower courts’ treatment of Commerce Clause cases and
suggesting that there remains “evidence from the lower courts’ opinions that they are still
reluctant to take Lopez seriously, even after Morrison’s clarifying opinion”). Interestingly, lower
courts may even take Supreme Court decisions and apply them in situations having a very different
ideological cast, posing the difficult question whether such a decision is compliant or not. See,
e.g., Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003) (granting the plaintiffs a preliminary
injunction to prevent denial of access to medical marijuana as authorized under state law, on the
basis that their Commerce Clause challenge to the federal Controlled Substances Act has a strong
likelihood of success). The Ninth Circuit panel distinguished United States v. Oakland Cannabis
Buyers’ Coop., 532 U.S. 483 (2001), in which the Supreme Court held that a medical necessity
exception for marijuana was at odds with the unambiguous terms of the Controlled Substances Act, on
the basis that the Court had expressly reserved the Commerce Clause issue.


82

The Federalist No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (“[T]he judiciary,
from the nature of its functions, will always be the least dangerous [branch] to the political
rights of the constitution . . . . The judiciary . . . . has no influence over either the sword or
the purse; no direction either of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither force nor will, but merely
judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise
even of this faculty.”).


83

United States v. Nixon, 418 U.S. 683 (1974). On President Nixon’s decision to comply with the
orders of the Supreme Court, see Stanley I. Kutler, The Wars of Watergate: The Last Crisis of
Richard Nixon 515-16 (1990).


84

On President Eisenhower’s personal skepticism about Brown, and his decision to send in the troops,
see Lucas A. Powe, Jr., The Warren Court and American Politics 35-36, 157-59 (2000).


85

For President Lincoln’s instructions to ignore the order in Ex parte Merryman, 17 F. Cas. 144
(C.C.D. Md. 1861) (No. 9487), see Abraham Lincoln, Message to Congress in Special Session (July 4,
1861), reprinted in 4 Collected Works of Abraham Lincoln 421, 430-31 (Roy P. Basler ed., 1953).


86

On President Roosevelt’s intended reaction in the event of a negative decision in the Gold Standard
cases, see Leuchtenberg, supra note 62, at 86-88; Barry Friedman, The History of
Countermajoritarian Difficulty, Part Four: Law’s Politics,148 U. Pa. L. Rev. 971, 1032-34 (2000).


87

See Richard H. Fallon, Jr., Implementing the Constitution 55 (2001) (discussing these weapons in
Congress’s arsenal: “[n]ot unreasonably, the Justices might consider any of these consequences to
be undesirable”).


88

See John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S.
Cal. L. Rev. 353, 355-65 (1999) (distinguishing between “legitimate” congressional or presidential
interference with the judiciary by “‘packing’ courts with new judges, regulating their
jurisdiction, or enacting general laws that overturn judicial interpretations of statutes,” and
“illegitimate” interference that tries to “get an individual judge to alter her decisions.”);
Fallon, supra note 87, at 55 (stating that Justices “appropriately take into account” congressional
responses to judicial decisions).


89

For example, members of the Court still remember the lessons of the Lochner era. See, e.g., United
States v. Morrison, 529 U.S. 598, 644 (2000) (Souter, J., dissenting) (“The Court in Carter Coal
was still trying to create a laissez-faire world out of the 20th-century economy, and formalistic
commercial distinctions were thought to be useful instruments in achieving that object. The Court
in Wickard knew it could not do any such thing and in the aftermath of the New Deal had long since
stopped attempting the impossible.”); Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 787
(2002) (Breyer, J., dissenting) (“This understanding led the New Deal Court to reject overly
restrictive formalistic interpretations of the Constitution’s structural provisions, thereby
permitting Congress to enact social and economic legislation that circumstances had led the public
to demand.”).


90

See, e.g., Lee Epstein et al., The Supreme Court as a Strategic National Policymaker, 50 Emory L.J.
583, 610 (2001) (providing empirical evidence that supports the proposition that Supreme Court
Justices “adjust their decisions in anticipation of the potential responses of the other branches
of government.”).


91

See Friedman & Harvey, supra note 75, at 139 (finding that the Supreme Court is more likely to
strike down congressional statutes when it is facing a friendly Congress); Mark Tushnet, The
Supreme Court, 1998 Term-Foreword: The New Constitutional Order and the Chastening of
Constitutional Aspiration, 113 Harv. L. Rev. 29, 78-79 (1999) (“[T]he Court is only now confronting
questions about the interpretation and constitutionality of statutes enacted during the previous
constitutional regime. From the new regime’s perspective, these statutes-even those recently
enacted-are outdated in the sense that they could not be enacted in the new regime.”). There are
other theories, of course. The appointment of Justice Clarence Thomas in 1991 may have sealed the
Federalism Five. But there are problems with this theory. See Merrill, supra note 8, at 590-601
(suggesting that while the replacement of Justice White by Justice Thomas can partly explain the
Court’s federalism jurisprudence, it accounts for only one of the five votes in the federalism
coalition, and does not explain the substantial innovations in federalism jurisprudence compared to
the decline in emphasis on social issues). See also John O. McGinnis, Continuity and Coherence in
the Rehnquist Court, 47 St. Louis U. L.J. 875, 877 (2003) (“The appointment of someone like Justice
Thomas and the rise of strong originalism as a thinkable methodology of judging was possible only
after the perceived failures of centralized government stimulated a renewed consideration of the
virtues of the Framers’ Constitution. Hence, Justice Thomas’s appointment is a confirmation of the
changing political ideals that have propelled originalism’s revival and that explain much of the
Rehnquist Court’s doctrine.”).


92

See generally Peretti, supra note 71, at 164, 163-77 (discussing social science research regarding
the relationship between public opinion and judicial review).


93

See Gregory A. Caldeira, Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing Plan, 81
Am. Pol. Sci. Rev. 1139 (1987) (examining Gallup Polls undertaken between February 3 and June 10,
1937 in relation to FDR’s court-packing plan and concluding that judicial behavior and mass media
played a crucial role in shaping public opinion regarding the Supreme Court in this period);
Leuchtenberg, supra note 62, at 137-39, 144-47, 152-54, 159 (discussing negative public reaction to
FDR’s court-packing plan). See also supra note 85 and accompanying text.


94

See generally Kramer, supra note 28, at 207.


95

Robert A. Dahl, Democracy and Its Critics 190 (1989) (“[T]he views of a majority of the justices of
the Supreme Court are never out of line for very long with the views prevailing among the lawmaking
majorities of the country.”); Robert G. McCloskey, The American Supreme Court 224 (1960) (“[I]t is
hard to find a single instance when the Court has stood firm for very long against a really clear
wave of public demand.”).


96

Some studies suggest that the judicial appointment process is the primary means by which popular
influence is felt on the Supreme Court. See, e.g., William Mishler & Reginald S. Sheehan, The
Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court
Decisions, 87 Am. Pol. Sci. Rev. 87, 96-97 (1993) (finding a lag of five to seven years in Supreme
Court responsiveness to public opinion; authors suggest the key explanation is the politically
motivated use of the appointment process); Helmut Norpoth & Jeffrey Segal, Popular Influence on
Supreme Court Decisions, 88 Am. Pol. Sci. Rev. 711, 716 (1994) (“While justices are not accountable
to the populace, presidents and senators, who share the power to choose them, are. Whatever
configuration of public opinion elects a president, in particular, could transpire in his or her
Court appointments. . . . It is not that the justices pay keen attention to public opinion but that
they have been chosen by a president (with the advice and consent of the Senate) who presumably
shares the public’s views.”).


97

Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, The Supreme Court,
and Constitutional Leadership in U.S. History (forthcoming) (manuscript at 45, ch. 2, on file with
author) (examining “the consistency of departmentalism with the American constitutional tradition,”
and arguing that the authority to give meaning to the Constitution has historically shifted away
from the judiciary to the political branches of government in times of reconstructive
constitutional regimes).


98

See, e.g., Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma,
93 Harv. L. Rev. 518 (1980) (arguing that judicial decisions during the Brown period only
accommodated the interest of blacks in racial equality to the extent that this converged with the
interests of whites); Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61
(1988) (placing Brown in the context of the U.S. government’s foreign policy efforts to fight
communism abroad and to promote democracy in Third World countries); Michael J. Klarman, Brown,
Racial Change and the Civil Rights Movement, 80 Va. L. Rev. 7, 10 (1994) (“[T]he Brown decision was
judicially conceivable in 1954 only because the forces for change had been preparing the ground for
decades.”).


99

See infra notes 155-72 and accompanying text.


100

The so-called “attitudinal model” of judicial behavior holds that when Justices make decisions they
want the outcomes to approximate as closely as possible to their ideological attitudes and policy
preferences. See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model
(1993); Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited
(2002). Cf. Lawrence Baum, The Puzzle of Judicial Behavior 37-55 (1997) (suggesting that in
addition to policy goals, goals relating to career and standard of living, limiting work load, and
judicial audiences may have a significant impact on the behavior of Supreme Court Justices);
Richard A. Posner, Overcoming Law (1995) (discussing the different sources of judicial motivations,
including the importance of practical consequences of decisions).


101

See Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91
Am. Pol. Sci. Rev. 28 (1997) (comparing the attititudinal and separation-of-powers game theories of
voting behavior by Supreme Court Justices and concluding that the Justices “overwhelmingly engage
in rationally sincere behavior.”).


102

See Anna L. Harvey & Barry Friedman, The Limits of Judicial Independence: The Supreme Court’s
Constitutional Rulings 1987-2000 (unpublished manuscript, on file with author).


103

Gratz v. Bollinger, 539 U.S. 244 (2003). See also supra note 44 and accompanying text.


104

Grutter v. Bollinger, 539 U.S. 306 (2003). See also supra note 44 and accompanying text.


105

For example, the recent defense of judicial supremacy by Alexander and Schauer rests on the
assumption that the Constitution is law, rather than politics. They state that “[a]n important
aspect of the Constitution, as of all law, is its authority,” Alexander & Schauer, supra note 51,
at 1361; “The reasons for having laws and a constitution that is treated as law are accordingly
also reasons for establishing one interpreter’s interpretation as authoritative. Cooper v. Aaron
thus reflects the very reason for having a constitution that is regarded as law,” id. at 1377. See
also Sunstein, supra note 29, at 93 (“[T]he Constitution is law. If the Constitution is law, then
it stands above politics. . . The Constitution does not mean what particular people want it to
mean; otherwise it would not be law at all.”); Kramer, supra note 28, at 24 (“In our world, there
is law and there is politics, with nothing much in between. For us, the Constitution is a subset of
law, and law is something presumptively and primarily, even if not exclusively, within the province
of courts.”).


106

For what it is worth, the obviousness of the point is clouded by another possible cause of
insistence on the law-politics divide: deep insecurity in the legal establishment, since the Legal
Realist Movement, about the autonomy of law. See generally Friedman, supra note 46.


107

See Post, supra note 36, at 8 (“[C]onstitutional law and culture are locked in a dialectical
relationship, so that constitutional law both arises from and in turn regulates culture.”).


108

See generally Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, Va. L. Rev.
(forthcoming 2005), available at http://
www.yale.edu/lawweb/jbalkin/articles/whatbrownteachesus1.pdf (discussing impact of social movements
as motivating force for major Supreme Court decisions); Post & Siegel, supra note 29, at 17-29
(discussing the significance of the law/politics distinction in American constitutional culture);
Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section 5 Power: Policentric
Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1947 (2003) (proposing a
model of “policentric constitutional interpretation” which “holds that for the purposes of Section
5 power the Constitution should be regarded as having multiple interpreters, both political and
legal. The model attributes equal interpretive authority to Congress and to the Court.”); Reva B.
Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa.
L. Rev. 297, 302 (2001) (discussing “the role of social movements in shaping constitutional meaning
in a different framework”); William N. Eskridge, Jr., Lawrence’s Jurisprudence of Tolerance:
Judicial Review to Lower the Stakes of Identity Politics 3 (unpublished manuscript, on file with
author) (claiming that the key to understanding Lawrence “is the Supreme Court’s recognition that
American democratic pluralism must meet the lesbian, gay, bisexual, and transgendered (LGBT) rights
social movement at least halfway.”).


109

See 1 Ackerman, supra note 51, at 262, 266-94 (distinguishing between ordinary legislation, enacted
during times of “normal politics” by the People’s representatives “whose word is not be to be
confused with the collective judgment of the People themselves,” and the Constitution, which
represents the true voice of the People and can be amended directly by them in moments of
“constitutional politics”).


110

See Stephen Holmes, Passions and Constraints 274 (1995) ( “Constitutionalism . . . assumes the
passions of men will not conform to the dictates of reason and justice without constraint.”). See
also Friedman & Smith, supra note 33, at 78 (“At bottom, constitutionalism necessarily must be the
reconciliation of present-day, popular preferences with some set of deeper, more enduring values.
Without the juxtaposition between present-day preferences and more enduring values, the idea of
constitutionalism is meaningless.”).


111

See, e.g., Bork, supra note 32, at 163 (recognizing that “two judges equally devoted to the
original purpose may disagree about the reach or application of the principle at stake and so
arrive at different results”).


112

This description oversimplifies calls for “popular constitutionalism” but not by much. At least
with regard to the question whether Congress has power to enact certain laws-under the Commerce
Clause, or Section 5 of the Fourteenth Amendment-commentators seem to believe a deferential stance
is constitutionally-required. See supra note 23. (On the question whether an exercise of power
violates constitutional rights, the approved role of the Court may be broader, though commentators
differ.).


113

Cf. Katherine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought,
1995 Wis. L. Rev. 303, 334 (1995) ( “Individuals attain new understandings of themselves and others
by struggling to resolve the incoherence between their deeply ingrained habits and norms and their
experiences and insights.”).


114

This example is drawn from Friedman & Smith, supra note 33, at 78-79.


115

See Korematsu v. United States, 323 U.S. 214 (1944) (upholding the detention of Japanese-American
citizens during Word War II); United States v. Eichman, 496 U.S. 310 (1990) (striking down a
provision of the Flag Burning Act of 1989 which criminalized flag-burning. The Act had been passed
by Congress in response to the Supreme Court’s decision in Texas v. Johnson, 491 U.S. 397 (1989)).


116

A third who deserves mention is John Hart Ely, whose book Democracy and Distrust provides a
detailed account of the role of judicial review. See generally Ely, supra note 47. Boiled to its
essence, Ely would have judges patrol the political process, standing in to protect minorities
whose rights might be neglected by majoritarian bodies. As such, Ely’s theory suffers from that
same problem, of being overly optimistic about the possibilities of judicial review. Ely’s judges
must spot and strike down prejudice engaged in by contemporaries in the political process.
Undoubtedly judges can and sometimes do this. But often they will not, either because they have the
same mindset or because they are reluctant to interfere with political decisions. And if judges
were to do what Ely suggest on a regular and vigorous basis, then-if the underlying legislation
mattered to the body politic-the judges might well find their authority under attack.


117

See generally 1 Ackerman, supra note 51; 2 Bruce Ackerman, We the People: Tranformations (1998);
Bickel, supra note 47; Alexander Bickel, The Supreme Court and the Idea of Progress (1970)
[hereinafter Idea of Progress]; Alexander Bickel, The Morality of Consent (1975) [hereinafter
Morality of Consent].


118

1 Ackerman, supra note 51, at 10 (“[T]he dualist sees the discharge of the preservationist function
by the courts as an essential part of a well-ordered democratic regime. . . . [T]he courts serve
democracy by protecting the hard-won principles of a mobilized citizenry against erosion by
political elites who have failed to gain broad and deep popular support for their innovations.”).


119

Id. at 299-301 (1991) (describing a two-track system that distinguishes between “higher lawmaking”
and “normal lawmaking”); see also id. at 6-7 (“If [the People] wish to claim this higher form of
democratic legitimacy, they must take to the specially onerous obstacle course provided by a
dualist Constitution for purposes of higher lawmaking. Only if they succeed in mobilizing their
fellow citizens and gaining their repeated support in response to their opponents’ counterattacks
may they finally earn the authority to proclaim that the People have changed their mind and have
given their government new marching orders.”).


120

Even in their moments of extreme engagement, the most they may do is vote, or send in a check to
the National Rifle Association, the NAACP, or the Democratic party. It is often going to be
difficult to tell the difference between the People engaged and the People at home watching Reality
TV.


121

See, e.g., Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce
Ackerman’s Theory of Constitutional Moments, 44 Stan. L. Rev. 759, 768-771 (1992) (book review)
(criticizing Ackerman’s failure to provide a clear answer to the question of how a court is to know
when non-Article V constitutional change has occurred and querying how courts will be able to
ascertain its content); Suzanna Sherry, The Ghost of Liberalism Past, 105 Harv. L. Rev. 918, 930
(1992) (book review) (“Although Ackerman describes what must happen for constitutional politics to
take place, he never sufficiently explains how we are to know when it has happened.”).


122

Just saying “superhuman” calls to mind Ronald Dworkin’s famous judge “Hercules,” who possesses
superhuman traits, so that he can engage in the complex, but right-minded, exercise of assuring
integrity in constitutional law. But even Dworkin does not look to ordinary judges to be superhuman
in the way Ackerman does. Indeed, he disclaims just this pretension, arguing that: “An actual
justice must sometimes adjust what he believes to be right as a matter of principle, and therefore
as a matter of law, in order to gain the votes of other justices and to make their joint decision
sufficiently acceptable to the community so that it can continue to act in the spirit of a
community of principle at the constitutional level.” Ronald Dworkin, Law’s Empire 380-81 (1986).


123

Bickel, supra note 47, at 23-33.


124

Id. at 236 (“The function of the Justices . . . is to immerse themselves in the tradition of our
society and of kindred societies that have gone before, in history and in the sediment of history
which is law. . . . The Justices will then be fit to extract ‘fundamental presuppositions’ from
their deepest selves, but in fact from the evolving morality of our tradition.”).


125

Id. at 26 (describing the courts as “a great and highly effective educational institution”);
Bickel, Morality of Consent, supra note 117, at 3-5 (suggesting that members of the Court simply
impose personal values when making decisions); Bickel, Idea of Progress, supra note 117, at 179
(“Because we hope that in the direst need the Court perhaps can save us-or to put it more
realistically, may show us that we are not as riven as we feared-we allow it continually to try to
save us when it cannot, and when authoritarian salvation is not what we need.”). Accord Fallon,
supra note 87, at 55 (Bickel used the term “prudence” to cover “worry by the Court about whether
its decisions are likely to lead to a public backlash against it.”).


126

Bickel, supra note 47, at 103.


127

The assumption that once the Court speaks, its decisions are final and binding, commonly lurks in
the academic literature that defends judicial supremacy. See, e.g., Alexander & Schauer, supra note
51, at 1371-72 (arguing that judicial supremacy is essential to the settlement function of the
law); Ronald Dworkin, Life’s Dominion 120 (1994) (“For all practical purposes, the federal courts,
and finally the Supreme Court, have the last word about what rights the Constitution affirms and
protects, and what the national and state governments therefore cannot do.”).


128

The classic formulation of the “countermajoritarian difficulty” is Bickel’s. See Bickel, supra note
47, at 16 (“The root difficulty is that judicial review is a countermajoritarian force in our
system.”); see also Kramer, supra note 28, at 14 (“Institutions immune or removed from politics may
be vital to secure principles that are prerequisites for democratic rule. . . . Yet ultimately
nothing can vouchsafe the rightness of what these institutions do, nothing can save them from
partiality and blindness, other than democratic challenge, scrutiny, and revision. . . . This is
the paradox of constitutional democracy.”); Suzanna Sherry, Issue Manipulation by the Burger Gov’t:
Saving the Community from Itself, 70 Minn. L. Rev. 611, 613 (1980) (“[W]hen the Court invalidates a
statute, it is overturning the decision of a popularly elected body; in essence, it is enforcing
its own will over that of the electorate.”).


129

For the sake of completeness, we would have a different sort of problem if what happened after a
judicial decision was nothing, if judicial decisions fell on deaf ears without a murmur of approval
of dissent. Obviously something does happen after the Supreme Court speaks, and it is the aftermath
of decisions that causes all the hullabaloo. But precisely because the aftermath not only is
nothing, but also is not as much as critics claim, it is the aftermath that should be the focus of
our discussion of the nature and function of judicial review.


130

On the subject of constitutional dialogue, see Barry Friedman, Dialogue and Judicial Review, 91
Mich. L. Rev. 577, 653-80 (1993) (discussing the process of judicial review as “dialogue” in which
a dynamic interaction takes place between the Court and the entire country regarding constitutional
meaning); Bickel, supra note 47, at 240, 244 (discussing a “continuing colloquy” about
constitutional meaning that takes place between the Court, the political branches, and society at
large); Bickel, Morality of Consent, supra note 117, at 111 (discussing the “conversation” that the
Supreme Court has with society, lower courts, and the other branches of government). Compare the
conception of constitutional dialogue that principally focuses on the dialogue that takes place
between the Court and the other branches of government, rather than between the Court and the
American body politic as a whole: Neal E. Devins, Shaping Constitutional Values 40 (1996) (
“Constitutional decision-making neither begins nor ends with a court decision. The shaping of
constitutional values is a dynamic process that involves all parts of elected government in an
ongoing dialogue.”); Louis Fisher, Constitutional Dialogues 3 (1988) (“[Constitutional law] is a
process in which all three branches converge and interact with their separate interpretations.”).


131

See infra notes 146-54 and accompanying text.


132

Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81
(1994) (describing Brown as causing social change only indirectly, by prompting a massive white
“backlash” in the South that eventually led to the crystallization of a strong national consensus
in favor of civil rights); Michael J. Klarman, How Great Were the “Great” Marshall Court
Decisions?, 87 Va. L. Rev. 1111, 1182 (2001) (“Supreme Court rulings often produce unpredictable
backlash effects. In the same way that Brown mobilized southern whites to resist further changes in
the racial status quo, and Roe v. Wade inspired right-to-lifers to organize politically against
abortion, McCulloch v. Maryland may well have mobilized a states’ rights opposition to the
nationalist principles articulated by the Marshall Court.”); see also Klarman, supra note 53, at
385-442, 464-66.


133

Bickel, supra note 47, at 26 (describing the courts as “a great and highly effective educational
institution”); Eugene V. Rostow, The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193,
208 (1952) (“The Supreme Court is, among other things, an educational body, and the Justices are
inevitably teachers in a vital national seminar.”).


134

See Charles H. Franklin & Liane C. Kosaki, Republican Schoolmaster: The U.S. Supreme Court, Public
Opinion and Abortion, 83 Am. Pol. Sci. Rev. 751 (1989) (finding that Roe v. Wade tended to
reinforce the views of those who opposed discretionary abortions); id. at 767 (“If the public
homogenously favors the Court’s position prior to the ruling, support will rise across all groups.
Similarly, if the populace uniformly opposed the Court’s positions beforehand, support will
actually decrease in the aftermath. In both cases, the mechanism is the same: individuals are
moving in the direction of their (homogenous) social context.”).


135

Rosenberg, supra note 53.


136

Cf. Mark Tushnet, Some Legacies of Brown v. Board of Education, Va. L. Rev. at 20 (forthcoming)
(explaining that some of Rosenberg’s argument is “overstated” because “cultural changes . . . are
rarely measurable by the methods Rosenberg used”).


137

See Engel v. Vitale, 370 U.S. 421 (1962) (banning prayer in public schools); Lee v. Weisman, 505
U.S. 577 (1992) (invalidating official prayers at public school graduation ceremonies).


138

See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (striking down a public high
school policy that allowed student-led prayer prior to school football games). Following this
decision, it was reported that students began to rise spontaneously in their seats at high school
football games in Texas and recite the Lord’s Prayer. See Noah Feldman, From Liberty to Equality:
The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673, 720 (2002) (citing Paul
Duggan, A Few Texas Faithful Make Stand for Prayer; Big Football Showing Fails to Happen, Wash.
Post, Sept. 2, 2000, at A1).


139

Roe v. Wade, 410 U.S. 113 (1973).


140

See Friedman, supra note 130, at 662 and n.433 for corroboration of this point.


141

See Christopher Eisgruber, Constitutional Self-Government 16-18, 20-25 (2001) (discussing the
constitutional obduracy that results from the rigid amendment procedures of Article V).


142

See Bickel, supra note 47, at 16-17 (“[W]hen the Supreme Court declares unconstitutional a
legislative act or the action of an elected executive, it thwarts the will of representatives of
the actual people of the here and now. . .”); Chemerinsky, supra note 11, at 45 (criticizing the
Rehnquist Court’s “devastating” effect on civil rights during the 1988-1989 Term, lamenting that
“[t]he decisions of the last Term will profoundly affect human lives. Many women will find it
harder to obtain abortions; more workers will be subject to drug tests; fewer civil rights
plaintiffs will prevail; perhaps lessening the deterrent to employment discrimination; more
individuals, in particular juveniles and the mentally retarded, will be executed.”).


143

For further elaboration of this point, see Barry Friedman, Mediated Popular Constitutionalism, 101
Mich. L. Rev. 701, 711-35 (2003).


144

For example, some issues with which the Court deals will not be salient; the public may not tune in
sufficiently to judicial decisionmaking; and there are ways of manipulating public opinion. See
generally Friedman, supra note 143, for an extended discussion of these problems. Still, in high
profile cases, the difficulties likely are diminished.


145

See Dahl, supra note 95; Mishler & Sheehan, supra note 96 (finding a lag of five to seven years in
Supreme Court responsiveness to public opinion); William Mishler & Reginald S. Sheehan, Public
Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective, 58
J. Pol. 169, 196-98 (1996) (finding a five-year lag in some Supreme Court Justices’ response to
public opinion). Cf. Robert Weissberg, Public Opinion and Popular Government (1976) (finding that
Supreme Court decisions in the areas of school integration and the death penalty have tended to
coincide with public opinion to a greater extent than in the school prayer cases).


146

One possible exception, and this could use proving empirically, is with regard to the First
Amendment. An example might be the flag-burning controversy. Whether this is in fact the case
requires further study, and if it is the case, it would be interesting to know why this occurs.
Finally, there is then room to examine a normative case for this exception.


147

For an explanation of this dialogic process in the context of abortion, see Friedman, supra note
130, at 658-68.


148

See generally Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975)
(discussing the judicial responses to the enforcement of slave laws).


149

See Mark Tushnet, Non-Judicial Review, 40 Harv. J. on Legis. 453, 460 (2003) (examining the use of
constitutional points of order in the United States Senate and observing that while “the
constitutional arguments made in these debates are usually quite truncated,” it nonetheless seems
that “nearly all the debates contain the skeletons of decent constitutional arguments, and
sometimes there is even a bit of flesh on the bones”); Abner J. Mikva, How Well Does Congress
Support and Defend the Constitution?, 61 N.C. L. Rev. 587, 587 (1983) (“For the most part,
legislative debate does not explore the constitutional implications of pending legislation; and, at
best, Congress does an uneven job of considering the constitutionality of the statutes it
adopts.”). See also Mark Tushnet, Evaluating Congressional Constitutional Interpretation: Some
Criteria and Two Informal Case Studies, 50 Duke L.J. 1395 (2001).


150

See James Bradley Thayer, John Marshall 106-107 (1901) (“[I]t should be remembered that the
exercise of [the power of judicial review], even when unavoidable, is always attended with a
serious evil, namely, that the correction of legislative mistakes comes from the outside, and the
people thus lose the political experience, and the moral education and stimulus that comes from
fighting the question out in the ordinary way, and correcting their own errors . . . The tendency
of a common and easy resort to this great function, now lamentably too common, is to dwarf the
political capacity of the people, and to deaden its sense of moral responsibility. It is no light
thing to do that.”).


151

It is a perfectly fair point that popular notions of judicial supremacy may influence the level of
acceptance of judicial decisions. Thus, people may be unhappy with judicial decisions yet fail to
speak up for fear this seems inappropriate. Though beyond the scope of this paper, this is indeed a
serious issue, one worthy of study and perhaps concern. The question is considered in Kramer, supra
note 28, at 227-33.


152

See Christopher L. Eisgruber, The Fourteenth Amendment’s Constitution, 69 S. Cal. L. Rev. 47, 53
(1995) (“Constitutionalism is, among other things, a way for a political community to ‘talk out’
its political identity.”).


153

Fallon, supra note 87, at 122.


154

This theory has obvious affinity with Bruce Ackerman’s, but it is not the same. Ackerman’s is a
stylized theory requiring specific steps to confirm the people have enacted higher law, so that
judges can recognize it. Here the argument simply is that over time popular opinion coalesces as to
constitutional meaning, and courts come to incorporate these changed understandings. There is no
stylized process that legitimates some constitutional change and not others. Accordingly, there is
no need for judges to engage in complicated interpretive maneuvers with regard to prior acts of
higher lawmaking. This theory accounts for constitutional change that is slow-moving, whereas
Ackerman focuses on more cataclysmic moments.


155

See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as
Equilibrium, 108 Harv. L. Rev. 26, 32 (1994) (“Law is . . . an equilibrium, that is, a balance of
competing institutional pressures.”).


156

See Friedman, supra note 143, at 714-18 (discussing the incentives judges face as possible
mechanisms of popular control).


157

See Richard Davis, Decisions and Images: The Supreme Court and the Press (1995) (providing evidence
that Supreme Court Justices are attentive to media coverage of the Court and its decisions).


158

See supra note 51 and accompanying text.


159

See, e.g., Balkin & Levinson, supra note 72, at 1073-74 (The federalism, voting rights, and
affirmative action cases that we have witnesses in the last decade are the predictable (though not
inevitable) product of a conservative Republican hegemony during the 19802 and early 19902 that
produced judges and Justices sympathetic with President Reagan’s vision of federalism and states’
rights, a vision well-reflected in a 1987 executive order setting out a series of “fundamental
federalism principles.”); Christopher H. Schroeder, Causes of the Recent Turn in Constitutional
Interpretation, 51 Duke L.J. 307, 334-59 (2001) (discussing the relationship between popular loss
of faith in government and the Court’s federalism jurisprudence).


160

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).


161

United States v. Lopez, 514 U.S. 549 (1995).


162

United States v. Morrison, 529 U.S. 598 (2000).


163

Printz v. United States, 521 U.S. 898 (1997).


164

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).


165

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003).


166

Post, supra note 36, at 19-24.


167

Lawrence v. Texas, 539 U.S. 558 (2003).


168

Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).


169

Bowers v. Hardwick, 478 U.S. 186 (1986).


170

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).


171

In a public opinion poll taken just prior to the Court’s decisions in Gratz and Grutter, a majority
of those polled favored both affirmative action programs designed to help minorities get better
jobs and education, and those programs that gave special preferences to qualified minorities in
hiring and education. However, the results also reflect the conflicted and contradictory nature of
the public’s attitudes about affirmative action, as only 24% of those polled agreed that every
possible effort should be made to improve the position of minorities, if this means giving them
preferential treatment. See The Pew Research Center for the People and the Press, Survey Report,
Conflicted Views of Affirmative Action (May 14, 2003), available at
http://people-press.org/reports/display.php3?ReportID=184. Similarly, polling data suggests that
while public opinion regarding the legality of homosexual relations was low throughout the 1980s, a
majority of the public now supports gay rights in this area. A useful graph synthesizing Gallup
Polls undertaken between 1977 and 2000 regarding the legality of homosexual relations can be found
at the Public Agenda website, http://www.publicagenda.org/issues/angles_
graph.cfm?issue_type=gay_rights&id=479&graph=majpropgaylegaltime.jpg (last visited July 11, 2004).
See also Balkin, supra note 108, at 5 (“Lawrence occurred well after public opinion had shifted
toward decriminalization of sodomy”).


172

See supra note 11.


173

505 U.S. 833 (1992).


174

Id. at 953-65 (Rehnquist, J., dissenting); id. at 993-94 (Scalia, J., dissenting).


175

See Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 166 (2003)
(“Real change, when it comes, stems principally from attitudinal shifts in the population at large.
Rare indeed is the legal victory-in court or legislature-that is not a careful by-product of an
emerging social consensus. Courts, in particular, are mainly reactive institutions.”); Sandra Day
O’Connor, Public Trust as a Dimension of Equal Justice: Some Suggestions to Increase Public Trust,
36 Ct. Rev. 10, 13 (1999) ( “As judges, court administrators and attorneys, we all rely on public
confidence and trust to give the courts’ decisions their force. We don’t have standing armies to
enforce opinions, we rely on the confidence of the public in the correctness of those decisions.
That’s why we have to be aware of public opinions and of attitudes toward our system of justice,
and it is why we must try to keep and build that trust.”).


176

See Alan Cooperman, Sodomy Ruling Fuels Battle Over Gay Marriage, Wash. Post, July 31, 2003, at A1
(citing a Gallup Poll which found that the portion of Americans who said “homosexual relations
between consenting adults should be legal” dropped from 60% in May 2003 to 48% in the month
following the Lawrence decision); accord Balkin, supra note 108, at 6 (“if anything, Lawrence
served to propel the gay rights debate forward onto the question of gay marriage”).


End of Document

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