Whose Majority Is It Anyway? Elite Signaling and Future Public Preferences
4 Journal of Law (1 New Voices) 14 (2014)
18 Pages Posted: 27 Mar 2014
Date Written: October 1, 2013
Preface by Professor Suzanna Sherry, Herman O. Loewenstein Professor of Law, Vanderbilt University.
This paper...come[s] from a seminar I taught in the fall of 2013 on Judicial Activism. The students read excerpts from books and articles about judicial review, judicial activism, and the role of the courts in a democracy. Each student was required to submit four papers (of at least ten pages each, not more than half of which could be description) in response to the assigned readings. The students were free to choose which weeks they wanted to write, and the papers were due at the beginning of that week’s class. Incidentally, I highly recommend this format for a seminar: the papers kept all the students engaged throughout the semester, and the students who wrote for any particular week tended to be particularly active in the discussion.
We spent two weeks, late in the course, discussing Barry Friedman’s The Will of the People and several commentators on that book. This paper by Will Marks focuses largely on those readings.
Marks criticizes both Friedman’s theory that the Court follows popular opinion and the response by Lawrence Baum and Neal Devins that the Court follows elite opinion. Marks argues, using gay rights as an example, that what the Court is really doing is trying to divine future public opinion — to maximize both the Court’s institutional legitimacy and individual justices’ historical legacies. Of course, as he points out, predicting the future is a risky business with substantial costs. All in all, Marks first suggests, then descriptively supports, and ultimately normatively criticizes, a novel approach to describing the interaction between the court and popular opinion. A fine addition to the literature, and something that deserves further study.
Keywords: Supreme Court, Windsor, Judicial Activism
Suggested Citation: Suggested Citation