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Law Office Management

Jul. 2, 2010

The Will of the People

William Domnarski


William Domnarski is a Southland mediator and practitioner. His latest book is "Richard Posner," published by Oxford University Press in 2016.

In 1953 Justice Robert Jackson used self-effacement to make a telling point when he noted that the U.S. Supreme Court is not final because it is infallible but instead is infallible because it is final (Brown v. Allen, 344 U.S. 443, 540 (Jackson, J. concurring)). However, the truth remains that the Supreme Court is indeed - save for the amendment process - infallible. Still, Barry Friedman reminds us in his fine history of the high court that infallibility should never be confused with omnipotence.

Life has never been easy in Washington, D.C., and throughout the Supreme Court's history it has fought turf wars with both other branches of the federal government and with the states. Judicial review, first set out by the Marshall Court, would seem to give the Supreme Court the trump card in all disputes, but winning the hand is different from collecting the pot. Congress in the 19th century, for example, was easily persuaded that it needed to curb the power of the Court by changing the number of justices. Then in the 1930s Franklin Roosevelt tried (and failed) to pack the Court and dilute the votes of those resisting his New Deal legislation. Finally, states unhappy with rulings by the high court have often chosen defiance and declared the decisions' invalidity. In the states rights battle lines, the states could hold fast and know that the Court was impotent to enforce its will. Only Eisenhower in Little Rock dared take action to break such defiance.

Friedman's thesis is that, along with these skirmishes, the most important ongoing relationship the Court has is with the public itself. Known as they are to read election results (and headlines), the justices have throughout our history been more or less synchronized with public opinion on constitutional issues and the role of the Court itself. Certainly the public reacts when the Court goes too far one way - whether the Dred Scott decision or the Warren Court - and demands movement back to the middle. Determining causation, though, may sometimes be a problem. It can be difficult to know which leads and which follows, but the result remains the same: public approval.

Friedman argues that the Court's approval rating has rebounded since the anger over the Court's application of political force in the 2000 election, and he may well be right. But more recent events-the controversial election financing decision (Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010)), for example - suggest that the usual counterbalancing forces may no longer be working and we are in for a rough ride. The present Court, led by its four true believers - Justices Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas - seems not just out of touch but also untouchable.

We will see in the next few years whether the Court wishes to untether itself from the moderating influence of public opinion. If it does we can, with the full appreciation of the historic relationships elucidated in this engaging volume, call for the Court to once again fulfill its obligation to the nation.

A federal court practitioner in Los Angeles, William Domnarski most recently published Federal Judges Revealed (Oxford University Press, 2008).

Kari Santos

Daily Journal Staff Writer

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