Jeff Rosen moderated this AIF session featuring Sandra Day O'Connor (former Supreme Court justice), Stephen Breyer (currently on the court) and Larry Kramer (Stanford law professor). I was unfamiliar with Kramer's book, The People Themselves: Popular Constitutionalism and Judicial Review, though I intend to put that right after listening to his comments.
Kramer's thesis is that the court has indeed mostly followed shifts in public opinion over the years--and that it has been right to do so. The constitution, he argues, is a majoritarian document, despite frequent claims to the contrary. But it is majoritarian in a restricted sense. The American solution to the "ills" (Madison's term) of simple majority rule lies partly in slowing politics down through the complexity of the constitutional design. In this scheme, the Supreme Court, as the arbiter of the constitution's meaning, has greater political independence than other branches of government, but is not, and was never meant to be, entirely independent. It has no electoral accountability, but it has institutional accountability, which resides in the respect it enjoys and needs. Here then is the basic point: To command the public's respect, the court must pay attention to the public. History, says Kramer, shows this is what the justices have in fact done--even if they deny it, and even if they were unaware of it.
As Rosen said, Kramer thus comes close to accusing the court of false consciousness. Both justices gave his argument a frosty response, though I can't say their denials were all that convincing. More persuasive was the fact that the court had just struck down California's law restricting children's access to violent video games; I haven't seen polling but I'm willing to bet that this was a popular law. Five justices--an unlikely coalition of three liberals, plus Anthony Kennedy, plus Antonin Scalia--found that the law violated the First Amendment: in other words, violence in video games is protected free speech. Two more, Samuel Alito and John Roberts, voted to void the law because its terms were too vague. Hard to accuse the court of pandering when it votes 7-2 to let children keep buying violent video games.
Breyer, one of the two dissenters, explained his opinion at the session. Was the law's harm to First Amendment rights significant, measured against the freedoms the amendment was intended to protect? No. Was there evidence that when children watch violent video games, harm results? Yes, plenty. Were there good alternatives to a law forbidding sale to children? No. Therefore, the law should stand. This looks to me like good judicial reasoning. Adding still further to the complexity of the outcome, Clarence Thomas upheld the law on the originalist ground that the Framers believed parents have a duty to protect children from malign influences, and the law empowered them to discharge that duty. So the case divided both liberals and conservatives. The outcome apparently had little to do with ideology, and even less to do with deferring to the public mood.
Kramer could, and probably would, argue that this is a comparatively insignificant exception to the larger trend--and that might be right. Much of his disagreement with the justices on the influence of public opinion comes down to a question of timescale. The court does not move with every iteration of opinion; the court does not care about today's polls. But it doesn't, and shouldn't, act as though the settled view of the public counts for nothing.
The video games case illustrates another of Kramer's points. We need to recognize that the constitution, as amended and interpreted, just may not contain a clear answer to the most difficult cases. (How can we know what the Framers would have thought about video games?) We have to devise an answer, not discover it. To pretend otherwise--as in confirmation hearings for Supreme Court justices, say--is a dangerous error.
Of course there are two quite distinct ways in which Supreme Court justices can be mere "politicians in robes". One would be to follow shifts in public opinion slavishly--the topic of this session. The other and more important way would be to let political views (whether or not they accorded with public opinion) influence their rulings. To shed light on the latter, I would have been interested to hear O'Connor or Breyer tell of cases in which they had upheld laws that were, in their view, bad public policy but constitutional, or had struck down laws that were good public policy but unconstitutional.