This article is forthcoming in 2010 Michigan State Law Rev. 569.


In his book, The Will of the People, Barry Friedman documents a long‐term correspondence between popular opinion and Supreme Court decision‐making. He infers from this correspondence that the Court responds to popular will and that the public, in turn, seeks to “discipline” the Court if it goes too far astray. Thus, he reasons, the Court gains legitimacy by not being counter‐majoritarian in any meaningful sense. This comment, prepared for a symposium on the book, argues that the interpretation of the facts is faulty because it leaves out any role for principle in constitutional interpretation—or indeed, for interpretation itself as any kind of meaningful form of engagement between the Court and the Constitution. A better reading of the history would be that popular values, practices, and preferences are important elements of the task of principled interpretation, particularly in determining which of several possible interpretations best fits with our traditions and culture. Thus, the evidence does not make it necessary to jettison a belief in principled interpretation.


Constitutional Law

Date of this Version

July 2011