A Coase Theorem for Constitutional Theory

Abstract

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again.

Despite its many virtues, certain aspects of The Will of the People give me pause. For one thing, I fear that the book may fail to fully register the power and potential influence of the particular individuals who sit on the Supreme Court at a given time. If law professors and political scientists may become “so fascinated by the Court as political actor that they [forget] that it is also acted upon politically,” Friedman’s project may be vulnerable to the opposite criticism. That is, the book may under-appreciate the capacity of the Justices to shape social values or otherwise to decide important matters effectively with finality. For another thing, even if I am wrong about the Court’s potential efficacy as a political actor, there remains reason for skepticism that the book has tamed the counter-majoritarian difficulty, at least when the problem is framed properly.

Part I of this essay summarizes Friedman’s main thesis, including his implicit suggestion that the present composition of the Court matters much less than is commonly believed - and may not even matter much at all. Part II offers some reasons to doubt that the substantive visions of the Justices themselves are as relatively inconsequential as Friedman seems to believe. Part III explains why the counter-majoritarian difficulty endures even in the wake of Friedman’s formidable contribution.

Keywords: supreme court, Coase theorem, judges