Book Review: Barry Friedman: The Will of the People
By: Michael W. Kramer
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Barry Friedman argues in his book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution that the infamous "switch in time that saved nine" was the most signification turning point in Supreme Court history. He boldly claims that "the court fight of 1937 served as the threshold to the modern era." (13) It wasn’t until 1937 that the “the American people signaled their acceptance of judicial review as the proper way to alter the meaning of the Constitution, but only so long as the justices’ decisions remained within the mainstream of popular understanding.” (196) Friedman believes that once the people unanimously accepted the fact that the constitution was a “living” document, public approval and acceptance of the Supreme Court’s authority became final and the Court transformed from being "an institution intended to check the popular will to one that frequently confirms it." (6)

Readers of Friedman's book can easily recognize that he believes originalist interpretations of the Constitution have historically held back the progress of the will of the people from progressively changing society for the better. Friedman bases his argument most heavily on historical evidence contained in newspapers. In doing so, he also makes the assumption that elected officials and "elite" leaders reflect the people’s collective opinion. For instance, Friedman states that he uses the quotes of “elites” as evidence because they "give voice to the sentiments of their constituents and audiences (and that is) what long-serving politicians and successful journalists do." (18)

By relying heavily on newspaper evidence to gain insight into the people's minds, Friedman gives little recognition to the fact that journalists almost always write with a bias and newspapers throughout all of American history have always slanted in one way or another between liberal or conservative. Not once does the author acknowledge the fact the country’s newspapers have traditionally (except for the past few decades) been written by males who write information about what white male leaders are saying. Friedman also does not mention anything regarding how many copies of each paper were sold. When landmark cases were decided by the Supreme Court, sales numbers of each could have further supported or not supported his thesis.

Friedman’s usage of newspapers indeed does provide readers with insight into how the population saw the Supreme Court throughout U.S. history. But, at times his book seems to read too much like a historical narrative. Friedman does succeed in proving that if “preceding history shows (us) anything, it is that when judicial decisions wander far from what the public will tolerate, bad things happen to the court and the justices." (275) Judges staying on the good side of the people has in time has proven successful as "the justices are no less vain than the rest of us, and it is human nature to like to be liked or even applauded and admired." (374)

A counter-argument can easily be made that it is in fact the Court itself that shapes public opinion more than the people's voice being represented through the words of the justices. For instance, in Roe v. Wade and Bush v. Gore the Court’s judgment on divisive issues eventually led to the public accepting their decision. Based on this premise, one can ask that if the Court ruled that separate was not equal in Plessy v. Ferguson would the racism that existed decades into the future have lasted as long as it did? To address that question, Friedman claims that the people's will does not solely direct the actions of the court and that "what history shows is assuredly not that the Supreme Court decisions always are in line with popular opinion, but rather that they come into line with another over time." (38)

Landmark Supreme Court cases are labeled as such because they provide the nation with the final verdict on critical issues that need a final authoritative decision. In my opinion, I define the will of the people to be something that is unanimously shared by no less than eighty percent of the population. In comparison, Friedman believes otherwise and throughout his book he believes that when a consensus hovers around the fifty-percent mark that is good enough mean "all" people. In titling his book The Will of the People Friedman uses the word people too casually as one person’s opinion as to what percentage of a majority resembles the collective mindset of a population will always differ. Friedman uses the term "people" too broadly and he too often assumes that the people make well-educated decisions when electing their leaders and the leader’s views always reflect their own. The title of the author's book is vague and a perfectly legitimate argument can be made that the “will of the people” can apply to any branch of the government or even individual in general. For example, if a book were to be written showing the correlation between public opinion and presidential policy making, historical hindsight would obviously show that the will of the people would be mirrored by the president’s actions because (after all) the country still elects it’s leaders.

I do not think that the people are as intelligent as Friedman thinks they are and their faith in the court historically (and currently) has always swayed back and forth on a pendulum between approval and disapproval. But, the public is always at the mercy of politicians and media outlets which direct the public into believing what they are told to believe. Thus, the Court does not necessarily reflect the will of the people but rather the will of propagandists who instill their beliefs into the minds of the listening audience.

Friedman writes that in a fire-side chat on March 9th, 1937, President Roosevelt informed his listening audience that the federal government operates as a "three-horse team provided by the Constitution to the American people." But, at the time, "two of the horses were pulling in unison (the congress and house) and the third (the court) was not. It is the American people themselves who expect the third horse to pull in unison with the other two." Friedman then states "many at the time were of like mind." (6) The problem with this statement is that it assumes that Roosevelt was telling the people what they already knew. Instead, a more plausible explanation is that Roosevelt was using the power of propaganda to gain support from the public to get the “horses” to go along with his New Deal reform programs. Therefore, the will of the people was not necessary their will as much as it was the will that Roosevelt was implanting in their minds. While political rhetoric has always shaped people's beliefs, in the desperate times people looked for answers and Roosevelt gave the people a simple problem and solution that the people were more than willing to accept even if the sacred scrolls of freedom listed in the constitution had to be changed.

As Friedman sees it, the switch in the court happened because at first the people were infuriated that the Court was not implementing their will and that Roosevelt was echoing their views when he criticized the Justices in his fire-side chats. While his argument is indeed valid, it diminishes the impact that Roosevelt’s rhetoric had over his listening audience. During the desperate times of the great depression, the people were looking for answers and when they were told by the President himself that the Court is to blame for their difficulties the national finger gets pointed in that direction. The shift in public mood was not necessarily the people themselves actually disappointed that the Court was dragging its feet but the shift occurred only after Roosevelt conveniently scapegoated the Court as holding back what he saw was best for the future of the country.

Friedman does not give enough credence to the ability of politicians to use fear as a tactic to obtain votes. In the times after WWI and WWII and mostly during nationwide "red scares" the will of the people becomes divided between those who look to their elected officials and courts to protect from fear and those who are not fearful and look to the court for preservation of civil liberties and the right to protect beliefs not shared by conservatives. Friedman underestimates the role that fear has in and that the will of the people can change for the worse making them change their beliefs for the worse. Fear is instilled in the minds of people from what they read in the newspapers who (of course) print what elected leaders preach.

Friedman makes extensive use of polling data in the second half of his book. Polls have undoubtedly proven that the Supreme Court in the past decades have always polled higher than Congress. Friedman makes excellent use of the polling data to support his arguments but he does not compare and contrast the role the media plays. Court cases are complex and require a great deal of examination and study to understand. Friedman has proven that the public is accepting and overwhelmingly approving of the Court. However, it is also important to notice that the media in our modern twenty-four hour news cycle usually puts complex and difficult to understand news behind simple to understand more entertaining news. In recent years, news organizations have made it more common place to focus on one individual and overemphasize the importance of one man or women. But the Court, in the twenty-first century is naturally immune from criticism because there is no “one” man that can be singled out. Not only that, only a few times a year does the Court make national headlines when in comparison the President is constantly in the news.

Friedman does not utilize any sociological data or polling data which shows exactly how educated people actually are in their past and present knowledge of the Court. The approval rating of the Court being so high can be misleading because people just simply don't hear anything about it because it's not scrutinized on a daily basis by the media. While not stated, Friedman does provide a valid argument that the court is seen today as the national mediator who decides conflicts by being unable to be swayed too far to the right or left in a politically divided country.

In a democratic society every politician and judge is subject at the mercy of the people to gain and then stay in power. Friedman's book is a reminder that the people hold the cards and they must be vigilant at all times to keep the legislature and Supreme Court in our constitutional democracy safe from the dangers of corruption. Ultimately, that has always been true as our nation obviously was and still is a democracy. Regardless, Friedman's book is an outstanding contribution to the historical community and it will surely give some readers a new and unique way to understand Supreme Court history.