What is the Supreme Court's relationship with public opinion? Barry Friedman's answer in The Will of the People scours some 200 years of history to provide a distinctly political view of the Court, and the story he tells is compelling. Yet it is also incomplete. The Will of the People presents a largely external account of the law; it sees the influence of majority will as a force that moves outside the jurisprudence we lawyers spend so much of our time researching, writing, and talking about. By this account, there is what the Justices say is driving their decisionmaking-legal doctrine-and then what, consciously or subconsciously, is really going on. As Friedman has explained elsewhere, "The Justices don't tend to give speeches much less write opinions saying 'we are following public opinion." Or do they?
In this symposium contribution, I contend that Friedman is right; Supreme Court decisionmaking is inextricably bound to majority will. But he is more right than he knows, or at least more right than The Will of the People shows. In his focus on an extralegal account of Supreme Court decisionmaking, Friedman misses the best evidence yet of the Court's majoritarian leanings: its widespread use of explicitly majoritarian doctrine. Sometimes-not all the time or even most of the time, but sometimes-the influence of majority will is so strong that it seeps into the legal framework for deciding questions of constitutional law. On these occasions, the Justices do write opinions that say "we are following majority will." By and large, the phenomenon simply has gone unnoticed.
Corinna Barrett Lain, The Doctrinal Side of Majority Rule, 2010 Mich. St. L. Rev. 775