BROOKE GLADSTONE: From WNYC in New York, this is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield.
JENNA LEE/FOX NEWS: Well, the US Supreme Court is considering two major cases on same-sex marriage.
TIM O’BRIEN/FOX NEWS: The questions are huge.
BRIAN WILLIAMS/NBC NIGHTLY NEWS: A topic that is moving quickly in terms of public opinion comes before a court that tends to move slowly.
BOB GARFIELD: One possible outcome? The recognition of same-sex marriage, nationwide. And if that happens, it will be one of a series of landmark rulings extending the rights of citizens, Brown v. the Board of Education, Roe v. Wade, Miranda, and so on. But how much does the Supreme Court change the public’s perspective on those issues and how much does public opinion influence the Court? NYU Law Professor Barry Friedman has written a book on that very question and says the answer is that, contrary to popular belief:
PROF. BARRY FRIEDMAN: As I show in my book, The Will of the People, on countless important issues, the Supreme Court tends to come into line with public opinion over time.
BOB GARFIELD: Give me examples of cases where you think the Court was kind of destined by the trends in public opinion to make the decisions it’s made.
PROF. BARRY FRIEDMAN: I think, actually, an interesting place to start is with the issue of gay rights, the issue on the plate this week. The Supreme Court confronted that issue in terms of gay sex in Bowers v. Hardwick in the early 1980s and found that state laws that banned what was called then “homosexual sodomy” were constitutional. That was the height of the scare about AIDS and people were like very leery of homosexuality.
But there is something ironic that happens, which is that when the Supreme Court decides a case, the people who agree with it tend to nod and go back about their business. It’s the people who are shocked by the decision or outraged by the decision that tend to mobilize in the political arena. We saw that after Roe v. Wade when the right organized and really led the country into a period of much more conservative politics. And we saw it after Bowers v. Hardwick, when the gay community organized in an extremely effective way. And 20 years later, we saw the Supreme Court flip around in Lawrence v. Texas and find that all of the state laws that banned “homosexual sodomy,” as it was again then called, were unconstitutional.
BOB GARFIELD: There are cases, are there not though, where the Court seems ahead of public opinion? I’m thinking of Miranda, which decades and decades into its history still seems to be understood by a majority of Americans as giving extra rights to the criminally accused.
PROF. BARRY FRIEDMAN: At the time the court decided the case, it looked like public opinion in the culture very much favored what it was doing. Miranda came at the end of a long line of Supreme Court decisions expanding the rights of criminal defendants very much driven by concerns about race and justice in the United States. I mean, another one is Gideon v. Wainwright saying that people had a right to a lawyer, and it went down very happily in the country. But right when Miranda got decided, crime rates shot up in this country and Richard Nixon took advantage of that and ran against the Court and soured the whole Miranda story.
Sometimes what happens is the Court decides a case. There’s the compelling story about why it was consistent with the culture, but then, for whatever reason, there’s a backlash.
BOB GARFIELD: So coming back to gay marriage, the opposition to it in polls seems to be minimal. But, as you analyze this highly polarized court, what’s your prediction?
PROF. BARRY FRIEDMAN: Very often the Supreme Court finds itself in line with public opinion or the culture. By looking at what a majority of the states do, rather than looking at public opinion polls, though there are examples of that, but in this case you get a split in terms of gay marriage. So if you look at public opinion and you look at the polls, it looks like there’s, you know, just over majority support. But if you look at the state laws, they’re all still very much negative on the question of gay marriage. And so, this case presents the Court with a challenge. It was hard to say after the argument, and I think that there were hints in every direction. Most importantly, Justice Kennedy, who sits squarely in the middle of the Court on this issue and is going to be the deciding vote, made comments that looked in both directions dramatically.
BOB GARFIELD: We’re speaking of the Supreme Court as an institution, but the Court, as it stands now, is so polarized that Justice Kennedy is usually the swing vote. Does the history of how the Court behaves have anything to do with this particular [LAUGHS] set of justices where Justice Kennedy sort of gets to decide the law for the immediate future?
PROF. BARRY FRIEDMAN: Well, if you stop and think about it, there are nine justices on the Court, so somebody will always be in the middle. People often ask how does the Supreme Court end up following public opinion over time, following the culture? But as you rightly observe, often it doesn't take nine justices. It just takes one. And then that justice in the middle, by definition, is likely to be somebody who tends to be more attuned to the grays instead of the black and whites.
BOB GARFIELD: What’s your best guess?
PROF. BARRY FRIEDMAN: Look, here’s what I think that Anthony Kennedy’s gonna want to do. He's been a big supporter of gay rights throughout his time on the Court, and it's a matter about which he feels passionately.
On the other hand, he’s a big supporter of federalism and he doesn't like to stomp on what the states are doing. So if I were Anthony Kennedy, I’d want to figure out a way to give a favorable nod to the issue of gay marriage, move the needle little bit on the issue in the right direction, while saying we need to give it a little bit more time. And that's the kind of statement he likes to make. And in both of the cases that are in front of the Court this week, there is some wiggle room to do something unusual like that.
BOB GARFIELD: Barry, thank you so much.
PROF. BARRY FRIEDMAN: It’s been my pleasure.
BOB GARFIELD: Barry Friedman is the author of The Will of the People.