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.