For forty years, constitutional law has been dominated by the countermajoritarian difficulty—the concern about the capacity of the Court to flout the popular will. A strong version of this critique flows from the fear that the justices follow their own policy preferences in important cases, something that seems illegitimate since they are not elected. One response to the countermajoritarian difficulty is to dispute this premise and argue that actually the Court as a whole tends in relatively short order to follow the will of the popular majority. Barry Friedman’s The Will of the People is the most recent and articulate defense of this position.
But in an excellent article in the Georgetown Law Review, Neal Devins and Larry Baum show that Supreme Court justices respond at most indirectly and very imperfectly to the majority of citizens. They look at some of the evidence, comparing the Supreme Court decisions with popular opinion. They confirm what I had long suspected: the reason that law professors have been persuaded that the Court follows popular opinion is that they confuse the will of the majority of people with the will of the majority of law professors!