In an April 14 op-ed in the New Republic, Vice Dean Barry Friedman, Jacob D. Fuchsberg Professor of Law and author of The Will of the People, and Jeffrey Rosen posit that the Supreme Court is not likely to engage in a power struggle with President Barack Obama and the U.S. Congress. Friedman and Rosen also confronted the seemingly disparate definitions of “judicial activism” coming from some conservative and liberal voices. Rosen, the author of The Most Democratic Branch: How the Courts Serve America, is a professor of law at George Washington University Law School and the legal affairs editor of the New Republic.

Recently, say Friedman and Rosen, conservatives have been urging Supreme Court judges to “strike down landmark federal laws that passed over their objections,” but the authors assert that history shows that the Court tends to fall in line with public opinion, and is not often willing to directly challenge the executive and legislative branches. “Will we see a return to the constitutional conflicts of the 1930s, when the Supreme Court launched an assault on FDR’s New Deal, until he struck back by threatening to pack the Court?” the authors ask. "Anything is possible, but in the end, we are skeptical. A little realism about the Court suggests that Chief Justice Roberts is likely to balk at the siren calls of the conservative activists and decline to go very far down this fraught path.”

Friedman also recently contributed an op-ed on in which he argued that the Obama administration and the U.S. Congress have focused on regulatory changes to the point of neglecting vacant federal court benches. “What the Obama administration and the Senate seem to be missing is that, in the end, it all comes down to the judges,” Friedman wrote. “Sure, the battles must first be fought and won in the halls of Congress. But once the legislative dust settles, the struggle turns to the courts. There, legislative victories can turn to vapor.”

Earlier this month, Friedman’s book, The Will of the People, was the subject of a two-day symposium at the Michigan State University College of Law. The event, organized by the Michigan State Law Review, kicked off with a keynote lecture by Friedman on April 8th. The next day, five panels of law and politics experts from around the country used The Will of the People as a framework to discuss American constitutional history, law and politics, constitutional theory, and comparative constitutionalism.

The April 14 NYU Law Forum, "Judging and Personality: What Does a Judge's Biography Tell Us?," featured Friedman and Rosen in a discussion of how judges' personalities and life experiences affect their time on the bench. The two were joined by Joan Biskupic, author of American Original, a 2009 biography of Supreme Court justice Antonin Scalia, and Frederick I. and Grace A. Stokes Professor of Law Norman Dorsen.

Posted April 16, 2010