Dear Dahlia and Walter:
Walter, I'm in your debt for making me go back to read and savor Justice Souter's opinion in the DNA case. And it really is worth savoring as a summation of a career and a manifesto by a true conservative, one who has seen it all for the past two decades—interpretative theories tested and found wanting, theories hijacked, theories that once in a while during his tenure have showed the way to a better place. I'm reminded of his paean to stare decisis in his section of the joint opinion in Planned Parenthood v. Casey, which preserved the constitutional right to abortion 17 years ago:
The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.
That passage, of course, leads us to Dahlia's question about the role of public opinion in the Supreme Court's work. It's such a rich subject, and I look forward to reading Barry Friedman's book. Another new book, The Constitution in 2020, a collection of essays edited by Jack Balkin and Reva Siegel, has just been published by Oxford. In their introduction, Professors Balkin and Siegel make this point:
Judges exercise independent judgment, but they still reason as members of a political community. Their decisions draw on contemporary values and respond to complex currents in public opinion. … In a democratic society, courts best perform their institutional role as partners in a larger dialogue: They respond to popular visions of the Constitution's values and help to translate these values into law. Constitutional ideas usually emerge from the bottom, not the top.
What they're talking about is public opinion not in the poll-driven sense but opinion as reflected in what's often referred to as "constitutional culture." There's a lot of fascinating scholarship on this theme, including Reva Siegel's work on the "de facto ERA"—the Equal Rights Amendment failed to get ratified, but the Supreme Court went ahead and changed the Constitution's meaning to erect very substantial barriers against sex discrimination. Walter mentions Chief Justice Rehnquist's vote to reaffirm the Miranda decision in the Dickerson case. How about his vote to declare unconstitutional the exclusion of women from the Virginia Military Institute—in many ways even more surprising? And, of course, the Court goes through an explicit public-opinion-referring exercise when it counts by states to decide whether capital punishment in various circumstances (retardation, adolescence) has become sufficiently "unusual" to violate the Eighth Amendment.
And public opinion in a more macro sense influences the electoral process, which influences who gets to sit on the Supreme Court. Commentators who want the Court to overturn the Second Circuit's decision in Ricci v. DeStefano, the New Haven firefighter case we are all waiting for, have invoked polls that show public discomfort with affirmative action, social science marshaled for an audience of nine. No matter how Ricci or any other individual case turns out, the answer to Dahlia's question is undoubtedly a resounding yes.
And the other thing I'm sure of, Walter and Dahlia: We'll be tuning in this morning.