![]() That observation captures Friedman’s thesis about the influence of public opinion on the Supreme Court. The American people signaled their acceptance of judicial review as the proper way to alter the meaning of the Constitution, but only so long as the justices’ decisions remained within the mainstream of popular understanding.” Justice Owen Roberts, who executed the “switch in time that saved nine” by changing his vote from one minimum wage case to the next, would later acknowledge that “it is difficult to see how the court could have resisted the popular urge” for change. In “The Will of the People,” his thought-provoking and authoritative history of the Supreme Court’s relationship to popular opinion, Barry Friedman, who teaches at the New York University School of Law, writes: “The true significance of 1937 requires no hidden clues it was plain for all to see. But once the justices backed down and let his expansion of the federal government stand, he was unable to persuade his supporters to stomach court-packing. ![]() ![]() Roosevelt had the people on his side as far as the New Deal was concerned. He told a colleague that when he stood before the chief justice to take the oath of office to protect and defend the Constitution, he wanted to say, “Yes, but it is the Constitution as I understand it, flexible enough to meet any new problem of democracy - not the kind of Constitution your Court has raised up as a barrier to progress and recovery.” And to make his legislation stick, the president moved aggressively to “pack” the court with as many as six new justices of his choosing. Madison.Ī century and more later, Roosevelt protested. The court took for itself the power “to say what the law is” in the 1803 case Marbury v. Nowhere in that document is it written that the court is the final arbiter of the Constitution’s meaning through judicial review. In 1937, faced with a Supreme Court that he saw as mulishly blocking his effort to rescue the country from the Great Depression, President Franklin Delano Roosevelt declared war on the justices - and on the whole notion of deferring to their interpretation of the Constitution. ![]()
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