Jenna Bednar · September 2010
78 GEO. WASH. L. REV. 1178 (2010)
For an institution designed to resolve disagreement, the United States Supreme Court is remarkably good at stirring the pot. Some look to the Court as the rampart that makes democracy’s airy construction possible; it is the essential resistance to majoritarian policy turned oppressive, the bulwark of liberty for minorities. Others point out the consequences of the Court’s countermajoritarian tendency; it will either reject progress like a dowdy schoolmarm, or the opposite, when it legislates from the bench, pushing its unpopular policies on a befuddled and increasingly resentful public.
We have grown so used to this debate about judicial review that we fail to ask the obvious question: what if both sides are wrong? In his remarkable, original book, The Will of the People, Barry Friedman turns the debate inside out. For either side of the conventional debate to be right, the Court would need to defy the popular majority. But as Friedman shows through a careful examination of the Supreme Court’s full history, the Court hews closely to public will, rarely straying from the public’s side and never doing so for long. The Court bounds along, pulling and resisting, but generally it accepts the people’s alpha status. Golly! The Court is the people’s puppy, and the people hold it firmly by the leash.
For us to believe that the people have the Court by a leash, a dialogic theory of judicial review must address three critical details: (1) how the public leashes the Court; (2) how the Court knows the length of its leash (which is necessary for the incentive to have force); and (3) how this behavior and knowledge shape the constitution (small “c”), i.e., the document’s meaning.
None of these three parts makes for an easy argument. This Essay examines each of these components, describing what challenges each pose for social science theory.
