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As the Supreme Court begins to weigh whether Marriage Equality should be the law of the land, it's fascinating to consider the role that public opinion plays in influencing what the court decides. Most Americans would be surprised to find that the Supremes are supposed to listen to what the people want when ruling on crucial Constitutional issues like Gay Marriage, but does anyone really believe, for instance, that Justice Scalia gives a damn what we think? It wasn't supposed to be this way, as Barry Friedman's new book - "The Will of the People" - points out:

"The true significance of 1937 requires no hidden clues; it was plain for all to see. 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.

1937 is explained in this Book Review by Emily Bazelon:

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. Nowhere in that document is it written that the court is the final arbiter of the Constitution's meaning through judicial review. The court took for itself the power "to say what the law is" in the 1803 case Marbury v. Madison.

A century and more later, Roosevelt protested. 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.

Friedman writes,

"It frequently is the case that when judges rely on the Constitution to invalidate the actions of the other branches of government, they are enforcing the will of the American people."

But not always:

"What history shows," Friedman argues, "is assuredly not that Supreme Court decisions always are in line with popular opinion, but rather that they come into line with one another over time."

It's a fascinating time we live in. Let's see how they decide on Gay Marriage at the end of June. Will they "get with it" and follow the trajectory of the American public, which is now strongly supportive of this, or will they get stuck in their old-fashioned, 1950's, ways?

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