In a legal regime whose canonical text is Marbury v. Madison, 2 it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable-enough to be well worth Barry Friedman's time3 - is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge that she has stepped outside of her role. If public opinion determines the content of constitutional rules, then it is more difficult to defend our collective choice of judges rather than politicians or social scientists as constitutional caretakers.
Guns, Originalism, and Cultural Cognition,
U. Pa. J. Const. L.
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